United States v. Self ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4331
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY LAMAR SELF,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00028-LHT-1)
Submitted: July 14, 2010 Decided: August 18, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Jennifer Lynn Dillon, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Lamar Self pleaded guilty to one count of
unlawful possession of a firearm after a felony conviction, in
violation of 18 U.S.C. § 922(g)(1) (2006). After a Presentence
Report (PSR) recommended that Self be subject to an enhanced
sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e) (2006), Self moved to withdraw his guilty plea, arguing
that his attorney had told him he would receive a lesser
sentence and had failed to discuss the option of filing pretrial
suppression motions. Following a hearing, the district court
denied the motion, concluding that none of the six factors
enumerated in United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991), weighed in favor of granting the motion. Self filed
a timely appeal, arguing that the district court should have
granted his motion to withdraw and committed reversible error
during his sentencing. We affirm.
Self’s plea agreement with the Government provided
that, regarding the sentence available to him:
The maximum sentence is ten years imprisonment . . . .
However, if, pursuant to 18 U.S.C. § 924(e)(1), the
defendant has three previous convictions by any court
for a violent felony or serious drug offense, the
maximum sentence is life imprisonment, and a fine of
$250,000. Under Section 924(e)(1), the statutorily
required minimum sentence is fifteen years
imprisonment and three years supervised release.
. . . .
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[T]he defendant is further aware that the Court has
not yet determined the sentence, that any estimate
from any source, including defense counsel, of the
likely sentence is a prediction rather than a promise,
and that the Court has the final discretion to impose
any sentence up to the statutory maximum for each
count.
Self’s plea agreement also contained an appeal waiver,
which provided that Self waived his right to appeal “the
conviction and/or the sentence except for: (1) claims of
ineffective assistance of counsel or (2) prosecutorial
misconduct.” (emphasis omitted).
During the guilty plea colloquy conducted pursuant to
Federal Rule of Criminal Procedure 11, Self acknowledged that he
understood the charges against him, the potential penalties he
faced, and the consequences of his plea. Self confirmed that
the plea was not the result of “coercion, threats, or promises
other than those contained in the written plea agreement.” Self
stated that he had discussed the plea agreement with his
attorney, a public defender, and was satisfied with his
assistance. Self also voiced his understanding that he waived
his right to appeal his conviction and sentence and accepted the
limitations on his right to appeal.
Self’s PSR recommended that Self be subject to an
enhanced sentence under the ACCA because he had eight prior
convictions for armed robbery. Consistent with the ACCA, the
PSR concluded that Self was subject to a statutory mandatory
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minimum of fifteen years imprisonment. With a total offense
level of 31 and a criminal history category VI, the guidelines
range was 188 months to 235 months imprisonment.
Five months after his guilty plea, Self, who had
subsequently retained private counsel, moved to withdraw his
plea. At a hearing on the motion, Self testified that he did
not discuss several issues with his prior attorney, most notably
the possibility that he could move to suppress evidence obtained
during a traffic stop and statements made to investigators, and
that he did not closely read the plea agreement. Self also
testified that he met with counsel on three occasions, and his
attorney told him that he would receive no more than ten years
imprisonment and his Guidelines range would be 51-63 months
imprisonment.
The district court denied Self’s motion to withdraw.
The district court concluded that much of Self’s testimony at
the hearing was “flatly contradicted by his signed plea
agreement and the answers that he gave under oath during the
Rule 11 hearing.” The district court observed that the plea
agreement informed Self that he could be subject to the ACCA and
that Self expressed confidence in his attorney during the Rule
11 hearing. The district court also noted that the five-month
delay in filing the motion weighed against Self because it could
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prejudice the Government and result in the waste of judicial
resources.
The district court adopted the PSR, downwardly
departed one level to level 30, and sentenced Self to the
statutory mandatory minimum of 180 months imprisonment.
II.
Self first argues that the district court should have
granted his motion to withdraw his guilty plea. We review the
denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Dyess, 478 F.3d 224, 237 (4th Cir.
2007).
Federal Rule of Criminal Procedure 11 authorizes the
withdrawal of a guilty plea before sentencing if “the defendant
can show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). A defendant has no “absolute
right” to withdraw a guilty plea, and the district court has
discretion to decide whether a “fair and just reason” exists.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
“The most important consideration in resolving a motion to
withdraw a guilty plea is an evaluation of the Rule 11 colloquy
at which the guilty plea was accepted.” United States v.
Bowman, 348 F.3d 408, 414 (4th Cir. 2003). Accordingly, a
district court’s “inquiry is ordinarily confined to whether the
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underlying plea was both counseled and voluntary.” United
States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (internal
quotation marks omitted). “A properly conducted Rule 11 guilty
plea colloquy leaves a defendant with a very limited basis upon
which to have his plea withdrawn.” Bowman, 348 F.3d at 414.
In considering a motion to withdraw a guilty plea, we
have promulgated a list of non-exhaustive factors, including:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
Ubakanma, 215 F.3d at 424. See also United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991).
Applying these standards, we conclude that the
district court did not abuse its discretion in denying Self’s
motion. The district court found that each of these Moore
factors weighed against Self in this case, particularly the
first, second, and fourth factors. On appeal, Self contests the
district court’s ruling on those three factors, arguing that he
has offered evidence of his innocence, and that he lacked close
assistance of counsel, rendering his plea unknowing. We find
these claims unavailing. Regarding his legal innocence, Self
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claims that the only evidence that he possessed the handgun that
is the basis for the conviction was that he honored a police
request to turn over the weapon, and that acting pursuant to
such “public authority” would leave him legally innocent to the
§ 922(g) charge. See Fed. R. Crim. P. 12.3; see also United
States v. Pitt, 193 F.3d 751 (3d Cir. 1999) (holding that public
authority defense applies when government agent authorized
defendant to commit an otherwise illegal act). Self overlooks
the fact, however, that he also gave extensive statements to
investigators detailing his participation in the robbery and
theft of multiple guns, including the handgun in question.
Regarding the first and fourth factors, Self relies on
his testimony before the district court that his counsel never
informed him of the option of filing suppression motions and
affirmatively told him that he would get no more than ten years
imprisonment. Self argues that his statements during the Rule
11 colloquy that he was satisfied with his attorney were true at
that time — he did not become unsatisfied until he received the
PSR and became aware that he faced a fifteen-year mandatory
minimum sentence.
Self does not dispute, however, that his plea
agreement specifically mentioned both that he might be subject
to the ACCA and that he should not rely on statements from his
counsel regarding a potential sentence. Self also does not
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dispute that he signed the plea agreement and that, during the
Rule 11 colloquy, he stated that he had read and understood all
of the terms in the agreement. Thus, Self cannot show that his
plea was unknowing or otherwise involuntary.
The remaining Moore factors — which Self does not even
contest — either favor the Government or are neutral and,
accordingly, the district court did not abuse its discretion in
denying Self’s motion.
Next, Self argues that his sentence should be vacated
because the Government failed to provide proper notice that he
might be subject to an enhancement under the ACCA. The
Government requests enforcement of Self’s appellate waiver as to
this claim. A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). Whether a defendant validly waived his right
to appeal is a question of law that we review de novo. Blick,
408 F.3d at 168.
An appeal waiver does not, however, bar the appeal of
a sentence imposed in excess of the statutory maximum or a
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challenge to the validity of a guilty plea. United States v.
General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992).
In this case, Self’s plea agreement provided that Self
waived his right to appeal “the conviction and/or the sentence
except for: (1) claims of ineffective assistance of counsel or
(2) prosecutorial misconduct.” (emphasis omitted). During the
Rule 11 colloquy, the magistrate judge confirmed that Self had
graduated high school and taken two years of college courses and
was not under the influence of any drugs or alcohol. The
magistrate judge also made specific reference to the appeal
waiver, and Self stated that he understood its ramifications.
On appeal, Self does not argue that either of the situations
described in General or Marin apply, * and the issue raised is
within the scope of this broad waiver. Accordingly, we decline
to address it.
III.
For the foregoing reasons, we affirm Self’s conviction
and sentence. We dispense with oral argument because the facts
*
Although Self’s sentence of fifteen years imprisonment
exceeds the statutory maximum for a conviction under 18 U.S.C.
§ 922(g)(1), the plea agreement specifically stated that Self
could be subject to the ACCA, which would carry with it a
fifteen year mandatory minimum. Accordingly, Self’s sentence
was not above the statutory maximum within the meaning of Marin
or General.
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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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