United States v. Fry ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 94-40741
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM BONNIE FRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(April 25, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
I.
Pursuant to a plea bargain, William Fry pled guilty to
possession of firearms by a felon under 18 U.S.C. § 922 (g)(1).
The presentence report (PSR) stated that Fry's crime carried a
base offense level of 22 under U.S.S.G. § 2K2.1(a)(3) because he
had a prior felony conviction for involuntary manslaughter and
because one of the firearms involved in the instant offense was a
machine-gun. The PSR further recommended a one-level enhancement
in the offense level under section 2K2.1(b)(1)(a) because the
offense involved three firearms and a three-level reduction for
acceptance of responsibility under section 3E1.1(a),(b)(1) &
(b)(2). Based on a total offense level of 20 and a criminal
history category of III, Fry's guideline imprisonment range was
41 to 51 months.
In his written objections to the PSR and at the sentencing
hearing, Fry argued, inter alia, that his base offense level was
incorrectly calculated because his prior state-court conviction
for involuntary manslaughter was not "a crime of violence" under
2K2.1(a)(3), and because he did not know that one of the weapons
in his possession had been altered so that it could fire
automatically. The district court overruled Fry's objections,
and sentenced him to a term of imprisonment of 41 months, a
three-year term of supervised release, and a $50 special
assessment.
On appeal, Fry contends that he should be allowed to
withdraw his guilty plea because of ineffective assistance of
trial counsel and repeats his arguments regarding the calculation
of his base offense level. We affirm.
II.
Fry first argues that he should be allowed to withdraw his
guilty plea, which he asserts was unknowing and involuntary
because his trial attorney 1) erroneously informed him that the
district court had denied his motion to suppress and 2) provided
flawed advice regarding the consequences of his plea. Fry
concedes that "[m]any of [his] assertions concerning ineffective
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assistance of trial counsel were not, and could not, be raised
before the trial court."1
"[A] claim of ineffective assistance of counsel generally
cannot be addressed on direct appeal unless the claim has been
presented to the district court; otherwise, there is no
opportunity for the development of an adequate record on the
merits of that serious allegation." United States v. Navejar,
963 F.2d 732, 735 (5th Cir. 1992). Thus, if an ineffective-
assistance claim is raised for the first time on appeal, this
court will reach its merits only "in rare cases where the record
[allows the court] to evaluate fairly the merits of the claim."
United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert.
denied, 484 U.S. 1075 (1988). This is not one of those rare
cases.
The record is not adequately developed for this court to
review Fry's assertions of ineffective assistance. Fry's
reliance on United States v. Santiago, 993 F.2d 504 (5th Cir.
1993), to support his contention that this court should remand
for an evidentiary hearing on his ineffectiveness claims, is
misplaced. Santiago is an appeal from the denial of the
defendant's motion to vacate sentence under 28 U.S.C. § 2255.
Accordingly, this court should decline to address the matter on
1. Appellant's Br. at 12. Although Fry sent a letter to the
district court complaining of his attorney's performance, the
letter did not raise the suppression motion issue. Therefore,
counsel's written response in the district court to Fry's
allegations is not adequate to address all of the aspects of the
ineffectiveness claims raised on appeal.
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direct appeal, without prejudice to Butler's right to raise it in
a section 2255 proceeding. See Higdon, 832 F.2d at 314; see also
United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991)
(claims of ineffective assistance can be resolved on direct
appeal only when the record provides substantial details about
the attorney's conduct).
III.
Next, Fry challenges, as he did in the district court, the
sentence imposed by the district court. "This court will uphold
a sentence imposed under the Guidelines so long as it is the
product of a correct application of the Guidelines to factual
findings which are not clearly erroneous." United States v.
Jackson, 22 F.3d 583, 584 (5th Cir. 1994). The district court's
findings of fact are reviewed for clear error, and its
determination of legal principles is reviewed de novo. Id.
Fry argues that the district court incorrectly calculated
his base offense level under U.S.S.G. § 2K2.1(a)(3). That
section provides for a base offense level of 22 "if the defendant
had one prior felony conviction of either a crime of violence or
a controlled substance offense, and the instant offense involved
a firearm listed in 26 U.S.C. § 5845(a)[.]" A machine-gun is a
firearm listed in section 5845(a). Fry does not dispute that he
possessed a "machine-gun" for purposes of section 5845(a);
rather, he contends that section 2K2.1(a)(3) should be read to
imply a scienter requirement and asserts that he did not know
that the gun in question had become a machine-gun by alteration.
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Whether knowledge is required under section 2K2.1(a)(3) is a
question of first impression in this court. However, this court
has addressed a similar argument in the context of a neighboring
guideline section. In United States v. Singleton, 946 F.2d 23,
25-27 (5th Cir. 1991), cert. denied, 502 U.S. 1117 (1992), this
court held that an upward adjustment could be assessed under
section 2K2.1(b)(1) against a felon who possessed a stolen gun
whether or not he knew the gun was stolen. The Singleton court
noted that "[t]he guidelines drafters have been explicit when
they wished to import a mens rea requirement." Id. at 25. The
court reasoned that because the neighboring sections of the
guidelines contain a mens rea requirement, and because statutory
sections are to be construed as coherent wholes, the drafters did
not intend to include a mens rea requirement in section
2K2.1(b)(1). Id.
Similarly, the language of section 2K2.1(a)(3) makes no
reference to the defendant's mental state. The section is plain
on its face and should not, in light of the apparent intent of
the drafters, be read to imply a scienter requirement. See
Singleton, 946 F.2d at 25. The cases cited by Fry, Staples v.
United States, 114 S. Ct. 1793 (1994), and United States v.
Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc), are inapposite
because they deal with convictions for strict liability crimes
rather than with strict liability sentencing enhancements. See
Singleton, 946 F.2d at 26.
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Fry also argues that his prior state-court conviction for
involuntary manslaughter2 was not a "crime of violence" under
section 2K2.1(a)(3). Application note 5 of the Commentary to
section 2K2.1 indicates that "crime of violence" is defined in
U.S.S.G. § 4B1.2. Section 4B1.2 defines crime of violence as:
any offense under federal or state law punishable by
imprisonment for a term exceeding one year that--(i)
has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(1). Application note 2 of the Commentary to
section 4B1.2 states that "crime of violence" includes "murder,
manslaughter, kidnapping, aggravated assault, forcible sex
offenses, robbery arson, extortion, extortionate extension of
credit, and burglary of a dwelling."
Thus, the drafters of the guidelines clearly indicated that
manslaughter was to be considered a "crime of violence." Since
the commentary to section 4B1.2 makes no distinction between
voluntary and involuntary manslaughter, we hold that both are
included. See United States v. Payton, 28 F.3d 17, 19 (4th Cir.)
(holding that previous involuntary manslaughter conviction
constituted a crime of violence under the Guidelines), cert.
denied, 115 S. Ct. 452 (4th Cir. 1994).
2. According to the PSR, Fry, who was driving while
intoxicated, ran five vehicles off the road before causing a
head-on collision and killing the passenger of the car he hit.
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In addition, the record indicates that the conduct which
formed the basis for Fry's previous conviction, causing the death
of another while driving under the influence, was clearly
"conduct that present[ed] a serious potential risk of physical
injury to another." U.S.S.G. § 4B1.2 (1)(ii). Thus, the
district court's ruling that Fry's previous conviction
constituted a "crime of violence" was not error.
IV.
For the reasons given above, the judgment of conviction and
sentence imposed by the district court are AFFIRMED.
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