United States v. Smith ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4113
ANTHONY ANTONIO SMITH, a/k/a
Anthony Antonio Alexis Smith,
a/k/a Tony Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-97-129)
Submitted: July 31, 2000
Decided: August 14, 2000
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, E. Jean Howard,
Assistant United States Attorney, Ann Agnew Cupp, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Anthony Antonio Smith appeals from his conviction and sentence
for conspiracy to possess crack cocaine with the intent to distribute,
and distribution of the same in violation of 21 U.S.C.A. § 846 (West
1999).* We affirm.
Smith raises three issues on appeal: (1) that the district court failed
to advised him during his Fed. R. Crim. P. 11 hearing that he had the
right to persist in his plea of not guilty; (2) that statements made by
the Government in a hearing on his motion to withdraw his guilty plea
were a factor in causing him to withdraw that motion; and (3) that he
received ineffective assistance of counsel.
Addressing the first of Smith's claims, assuming that the district
court's failure to specifically state that Smith had the right to persist
in his plea of not guilty violated Rule 11, this court reviews for harm-
less error. See United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.
1991). In conducting this review, the Court considers: (1) what the
defendant actually knew when he pled guilty on the basis of an affir-
mative indication in the record; (2) what information would have been
added to the defendant's knowledge by compliance with Rule 11; and
(3) how the additional information would have affected the defen-
dant's decision. See United States v. Goins, 51 F.3d 400, 402 (4th Cir.
1995) (citing United States v. Padilla, 23 F.3d 1220, 1222 (7th Cir.
1994)).
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*We have considered the effect of Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), and find that, because Smith received sentences of impris-
onment and terms of supervised release that did not exceed the statutory
maximums set out in 21 U.S.C.A. § 841(b)(1)(C) (West 1999), no plain
error occurred. See United States v. Aguayo-Delgado, No. 99-4098, 2000
WL 988128, at *6 (8th Cir. July 18, 2000).
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Examining these elements, we find that several of the district
court's statements and questions, and Smith's answers thereto, dem-
onstrate that Smith knew that he had the right to persist in his plea
of not guilty. This finding is supported by the facts that Smith did not
raise this claim during his motion to withdraw his plea, during his
remarks at sentencing, or on his prior appeal to this Court. In light of
this, we find that a specific statement from the district court that
Smith maintained the right to plead not guilty would not have affected
Smith's decision. Accordingly, we find any error harmless.
Smith next asserts that the Government's questions and statements
during his motion to withdraw his plea induced him to withdraw that
motion, apparently by leading him to believe that the Government
would file a motion for reduction in his sentence under Fed. R. Crim.
P. 35. It is well established that a government promise which is part
of the inducement for a guilty plea must be fulfilled. See Santobello
v. New York, 404 U.S. 257, 262 (1971). In determining whether a plea
has been wrongfully induced, it is important to remember that the
government is only held to those promises that it actually made. See
United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994). Smith,
however, does not assert at this time that his plea was induced by the
Government, but rather that his withdrawal of his motion to withdraw
his plea was so induced. Rule 32 (e) of the Federal Rules of Criminal
Procedure does not provide a defendant an absolute right to withdraw
a guilty plea, even before sentencing. See Fed. R. Crim. P. 32(e);
United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987).
Examining this specific claim, we note that in withdrawing his
withdrawal motion, Smith specifically stated that no one had influ-
enced him in his decision. Moreover, in this same hearing, the district
court stated, "I understand that there is a possibility that there will be
a [Rule 35] motion filed later?" (J.A. at 104 (emphasis added).) Smith
made no remark in response to this statement even though the district
court shortly thereafter inquired if there was,"[a]nything you wish to
tell me?" (J.A. at 104.) In light of these statements and omissions, we
find Smith's current claim to be without merit.
Finally, Smith contends that he received ineffective assistance of
counsel because his attorney: (1) failed to object to a statement in the
presentence report that "[t]he probation officer has no information
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concerning the offense or the offender which would warrant a depar-
ture from the prescribed sentencing guidelines" (J.A. at 128); and (2)
did not move to compel the Government to make a motion for a sub-
stantial assistance reduction. Claims of ineffective assistance of coun-
sel are generally not cognizable on direct appeal. See United States
v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for ade-
quate development of the record, such a claim must be brought in a
motion under 28 U.S.C.A. § 2255 (West Supp. 2000). See United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). Such a claim may
be brought, however, when the record conclusively establishes inef-
fective assistance. See King, 119 F.3d at 295. Review of the record
in this appeal does not conclusively establish such ineffective assis-
tance.
In light of the foregoing determinations, we affirm Smith's convic-
tion and sentence. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.
AFFIRMED
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