United States v. Shiflett , 258 F. App'x 560 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RUSSELL SHIFLETT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:06-cr-00252-JFM)
Submitted: November 28, 2007 Decided: December 20, 2007
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Kwame Jangha Manley, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Russell Shiflett appeals from his conviction and sixty-
month sentence after pleading guilty to conspiracy to distribute
and possess with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. § 846 (2000). On appeal, Shiflett’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious issues on
appeal, but asking the court to review whether the district court
erred in declining to apply the safety valve provisions pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2 and 18 U.S.C.A.
§ 3553(f) (West 2000 & Supp. 2007). Shiflett has also filed a pro
se supplemental brief, in which he makes a series of claims
regarding ineffective assistance of counsel and the adequacy of his
Rule 11 hearing. Because our review of the record discloses no
reversible error, we affirm.
Shiflett’s first issue on appeal is whether the district
court erred in failing to apply the safety valve provision and
thereby exempt him from the statutory mandatory minimum sentence of
sixty months’ imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B)
(2000). To qualify for sentencing under the safety valve provision,
a defendant must meet all five criteria set out in 18 U.S.C.
§ 3553(f), and incorporated into USSG § 5C1.2(a). The fifth
requirement of the safety valve is that, before sentencing, “the
defendant has truthfully provided to the Government all information
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and evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct or of a common scheme
or plan . . . .” USSG § 5C1.2(a)(5). A defendant must make an
affirmative effort to disclose to the Government everything he
knows concerning the offense before he may be eligible for
sentencing under the safety valve provision. United States v.
Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996). The district court’s
determination of whether a defendant satisfied the safety valve
requirements is a question of fact reviewed for clear error.
United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).
The district court denied application of the safety valve
on the ground that Shiflett had not been forthcoming about his
dealings with the other individuals involved in the drug
conspiracy. Shiflett contends that his omissions were the result
of imprecise questioning and his “lack of understanding.” However,
as Shiflett concedes, the details of the debriefing sessions are
not contained in the record and therefore cannot be reviewed on
appeal. Furthermore, while Shiflett asserts that his lack of
disclosure was the result of confusion, he has failed to present
any evidence to counter the Government’s contention that he was
evasive in his answers. See Ivester, 75 F.3d at 184-85.
Therefore, we find the district court did not err in determining
Shiflett failed to qualify for application of the safety valve.
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In his pro se supplemental brief, Shiflett raises a
number of claims relating to his counsel’s performance.
Allegations of ineffective assistance of counsel should be raised
in a 28 U.S.C. § 2255 (2000) motion rather than on direct appeal
unless the record conclusively demonstrates ineffective assistance.
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (internal
citations and quotations omitted). Such a claim cannot be fairly
adjudicated on direct appeal when the appellant has not raised the
issue before the district court and there is no statement from
counsel on the record. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). We find there is no evidence in the record
to support Shiflett’s allegations. Therefore, we find Shiflett’s
claims must be raised in a § 2255 motion rather than on direct
appeal.
Shiflett also raises a number of claims regarding the
adequacy of his Rule 11 hearing. Because Shiflett did not move in
the district court to withdraw his guilty plea, we review any
challenges to the Rule 11 hearing for plain error. See United
States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
Shiflett alleges that the plea agreement led him to
believe that the safety valve would be applied in his case and that
the trial court failed to disabuse him of this notion during the
Rule 11 hearing. However, the plea agreement stated that
“Defendant can argue for a two-level reduction of his sentence
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pursuant to USSG § 5C1.2,” and that the Government was free to
oppose such a reduction. Furthermore, the district court informed
Shiflett of the mandatory minimum sentence of five years while
noting that he could argue for a two-level reduction under the
safety valve provision, which would also permit him to be sentenced
below the mandatory minimum. Accordingly, Shiflett’s claim is
meritless.
Shiflett next claims that his plea was not knowing and
voluntary because he was not properly notified of his rights and
was under the influence of medication following surgery. For
medication to render a defendant incompetent, his mental faculties
must have been so impaired that he was “incapable of full
understanding and appreciation of the charges against him, of
comprehending his constitutional rights, and of realizing the
consequences of his plea.” United States v. Truglio, 493 F.2d 574,
578-79 (4th Cir. 1974) (internal quotation and citation omitted).
When a district court is informed that a defendant is under the
influence of medication, the court has a duty to make further
inquiry into the defendant’s competence to plead guilty. United
States v. Damon, 191 F.3d 561, 564 (4th Cir. 1999). When a
defendant’s answers raise a “red flag” regarding his mental state,
the court must expand its inquiry to ensure that the plea is being
made knowingly and voluntarily. Id. at 565.
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Shiflett did not assert he was under the influence of
medication at the time of the hearing; rather, he stated he had
taken pain medication on the day before the hearing. In any event,
the district court did inquire as to Shiflett’s status, as he
stated only that he was a “little sore” and felt he was able to
continue with the hearing. In contrast to Damon, none of the
answers provided by Shiflett or his counsel raised any “red flags”
regarding adverse effects on his mental state that may have
resulted from the prior use of medication. See Damon, 191 F.3d at
565. There is no indication from the Rule 11 colloquy that
Shiflett did not understand his rights or the charges against him,
and while Shiflett contends on appeal that he would not have pled
guilty had he not taken the narcotics, he provides no support for
this assertion. Accordingly, the district court did not err in its
inquiry regarding Shiflett’s competence.
Shiflett also contends the court should have explained
his rights under Rule 11 prior to inquiring as to whether he wished
to enter a guilty plea and the Rule 11 colloquy failed to inform
him that he had a right to “present evidence.” Shiflett apparently
asserts the district court failed to comply with Rule 11(b)(1)(E),
which requires that the defendant be informed of his “right at
trial to confront and cross-examine adverse witnesses, to be
protected from compelled self-incrimination, to testify and present
evidence, and to compel the attendance of witnesses.” At the
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hearing, the district court informed Shiflett of his right to
testify and to present and cross-examine witnesses. While the
district court did not specifically mention the right to “present
evidence,” Shiflett has not demonstrated that this minor omission
affected his decision to plead guilty. See United States v.
Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Accordingly, Shiflett
has failed to demonstrate that the district court plainly erred
during the Rule 11 colloquy.
Shiflett’s next claim is that the trial court was not
aware of its authority pursuant to United States v. Booker, 543
U.S. 220 (2005), to sentence him below the mandatory minimum even
without application of the safety valve. However, the district
court could not sentence Shiflett below the statutory mandatory
minimum unless it first determined that he had met the requirements
for the safety valve. See United States v. Robinson, 404 F.3d 850,
862 (4th Cir. 2005). Accordingly, Shiflett’s claim is meritless.
Finally, Shiflett claims the conspiracy charge is void
because all of the other parties to the conspiracy were government
agents. Shiflett asserts that Justin “Randy” Popielasz, who was
identified in the information and the plea agreement as a member of
the drug conspiracy, was a confidential government informant.
However, this matter was addressed during the sentencing hearing.
The Government explained that despite Shiflett’s personal beliefs,
Popielasz was not a government informant. While Shiflett persists
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in his allegation that Popielasz was serving as a government agent,
there is no evidence in the record to support this contention.
Accordingly, Shiflett’s claim is without merit.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Shiflett’s conviction and sentence. Additionally, we deny
Shiflett’s motion for bail pending appeal as moot. This court
requires counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client. 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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