United States v. James Gibson ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0645n.06
No. 14-3327
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Sep 17, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE NORTHERN
JAMES GIBSON, )
DISTRICT OF OHIO
)
Defendant-Appellant. )
)
Before: GUY, MOORE, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. James Gibson pled guilty to four counts of credit-card
fraud in violation of 18 U.S.C. § 1029. Now he appeals the district court’s denial of his motion
to suppress evidence of his guilt. He also argues that he received ineffective assistance of
counsel in the course of pleading guilty. We affirm.
I.
In December 2012, Gibson flew from Florida to Cleveland to meet with Lansford Beuns.
After checking into a local hotel, the pair set to work making counterfeit credit cards. Beuns
supplied an embosser and a magnetic-strip encoder; Gibson supplied a batch of stolen credit-card
numbers. Gibson and Beuns then charged thousands of dollars to these accounts at clothing and
electronics stores around Cleveland.
Their shopping trip ended when officer Michael Gerardi pulled over Beuns’s SUV for a
traffic violation. Gerardi wrote Beuns a ticket, ran a criminal-history check, and brought out his
police dog, Bishk’e, to perform a drug sniff on the car. Bishk’e alerted to the presence of drugs.
No. 14-3327, United States v. Gibson
Gerardi and several other officers then searched the vehicle, finding a stack of counterfeit cards
and bags of recently purchased merchandise. The officers arrested Gibson and Beuns for credit-
card fraud. The Secret Service used the evidence seized from Beuns’s car to obtain a search
warrant for Gibson’s and Beuns’s hotel rooms. There they seized a credit-card embosser and
other counterfeiting tools.
A grand jury indicted Gibson on four counts of access-device fraud, conspiracy to
commit access-device fraud, and aiding and abetting access-device fraud, in violation of
18 U.S.C. § 1029 and 18 U.S.C. § 2. Gibson moved to suppress all of the government’s
evidence, arguing that Gerardi lacked probable cause to search Beuns’s car. The district court
denied the suppression motion. Gibson pled guilty and entered into a civil-forfeiture agreement
with the government. The agreement stipulated that, “[s]hould all of defendant Gibson’s
convictions be reversed on appeal and finally dismissed, the United States will return to
defendant Gibson the properties forfeited under this Agreement[.]” The district court then
sentenced Gibson to 18 months’ imprisonment, and this appeal followed.
II.
A.
Gibson asks that we review the district court’s suppression ruling and reverse his
convictions. But Gibson pled guilty unconditionally, without reserving the right to appeal the
denial of his suppression motion. And “a voluntary and unconditional guilty plea bars any
subsequent non-jurisdictional attack on the conviction.” United States v. Corp, 668 F.3d 379,
384 (6th Cir. 2012) (internal quotation marks omitted). We therefore cannot consider Gibson’s
Fourth Amendment claim. See United States v. Ferguson, 669 F.3d 756, 763-64 (6th Cir. 2012).
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No. 14-3327, United States v. Gibson
Gibson seeks to evade this rule by asserting that his civil-forfeiture agreement reflects an
understanding among the parties that Gibson’s plea was conditioned on his ability to appeal the
denial of his suppression motion. But a civil-forfeiture agreement is the wrong place to preserve
an issue for criminal appeal. Under Rule 11, defendants have a duty to preserve issues
“collateral to the determination of guilt or innocence” by specifying those issues “in the plea
itself.” United States v. Ormsby, 252 F.3d 844, 848 (6th Cir. 2001) (internal quotation marks
omitted). Here, Gibson did not preserve any issue for appeal in the course of making his guilty
plea. Moreover, Gibson’s forfeiture agreement resolved only an in rem civil case against
Gibson’s property, which is distinct from the government’s criminal case against Gibson himself.
See United States v. Ursery, 518 U.S. 267, 278-79 (1996). Gibson could have preserved his
Fourth Amendment claim only through a plea agreement—not an agreement concerning a
parallel case.
Gibson responds that our decision in United States v. Mastromatteo, 538 F.3d 535 (6th
Cir. 2008), instructs otherwise. But that case only shows that a defendant may preserve an issue
for appeal through an oral agreement at his plea hearing. In Mastromatteo, defense counsel told
the court during the plea colloquy that his client “want[ed] to preserve his appeal rights in this
matter as regards the . . . search and seizure issue.” Mastromatteo, 538 F.3d at 541. The
government and the court accepted his reservation on the record. See id. Although this
agreement was not in writing, we held that the defendant validly entered a conditional plea by
preserving the appeal of “a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2); see
Mastromatteo, 538 F.3d at 543-44; see also Fed. R. Crim. P. 11(h). Unlike the oral reservation
in Mastromatteo, however, Gibson’s forfeiture agreement does not refer to a particular issue on
appeal. Rather, it refers generally to the possibility of an appeal. Because the agreement does
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not address Gibson’s suppression motion specifically, Gibson waived his Fourth Amendment
claim when he entered his guilty plea. See United States v. Napier, 233 F.3d 394, 399 (6th Cir.
2000).
B.
Gibson argues in the alternative that his trial counsel’s failure to preserve his Fourth
Amendment claims through a conditional plea violated his Sixth Amendment right to effective
counsel. As a general rule, however, “a defendant may not raise ineffective assistance of counsel
claims for the first time on direct appeal[.]” Ferguson, 669 F.3d at 762. Instead, a defendant
normally should raise those claims in a petition brought under 28 U.S.C. § 2255. See Massaro v.
United States, 538 U.S. 500, 504-05 (2003). Here, as in Ferguson, we have “scant information
in the record to illuminate whether it might have been sound strategy for defense counsel to
allow [Gibson] to enter an unconditional plea.” 669 F.3d at 763. We therefore decline to
address Gibson’s ineffective-assistance claim in this appeal.
The district court’s judgment is affirmed.
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