United States v. Benson Cadet

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11634 JUNE 29, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-20611-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENSON CADET,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 29, 2005)
Before DUBINA and WILSON, Circuit Judges, and LAWSON*, District Judge.
PER CURIAM:
Defendant Benson Cadet (“Cadet”) appeals his convictions and sentence
_______________________
*Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
for possession with intent to distribute five grams or more of cocaine base and a
detectable amount of marijuana, and possession of a firearm in furtherance of a
drug trafficking crime. Specifically, Cadet appeals: (1) the district court’s denial of
his motion to suppress the items seized during the warrantless search of his home
and the subsequent warranted search of his home and an automobile parked
adjacent to his home; (2) the district court’s denial of his motion for judgment of
acquittal; (3) the district court’s enhancement of Cadet’s sentence based on an
alleged prior state court conviction; and (4) the district court’s enhancement of
Cadet’s sentence for obstruction of justice based on conduct that was not charged
in the indictment or proved to the jury in violation of Blakely v. Washington, 542
U.S. __, 124 S. Ct. 2531 (2004), and now United States v. Booker, 543 U.S. __,
125 S. Ct. 738 (2005).
After oral argument and a thorough review of the parties’ briefs and the
record, we affirm the district court’s denial of Cadet’s motion to suppress and
motion for judgment of acquittal. However, as explained below, we vacate the
district court’s enhancement of Cadet’s sentence based on an alleged prior
conviction and remand to the district court for re-sentencing consistent with this
opinion and the Supreme Court’s opinion in Booker.1
1
Relying on Blakely, Cadet argued for the first time on appeal that a two-point sentencing
enhancement for obstruction of justice must be reversed as a violation of his Sixth Amendment
2
I.BACKGROUND
On July 19, 2002, a federal grand jury sitting in the Southern District of
Florida returned a three count indictment charging Cadet with: knowingly and
intentionally possessing with intent to distribute five grams or more of a mixture
and substance containing a detectable amount of cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 1); knowingly and intentionally
possessing with intent to distribute a mixture and substance containing a detectable
amount of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)
(Count 2); and knowingly possessing a firearm in furtherance of a drug trafficking
crime in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A)(i) (Count
3). A jury convicted Cadet on all three counts of the indictment.
Prior to trial, the government filed an information of a prior conviction
pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851.2 The information indicated that
rights. Because Cadet raises this Blakely/Booker issue for the first time on appeal, we review it
for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005), cert.
denied, 73 U.S.L.W. 3531 (U.S. June 20, 2005) (No. 04-1148). To establish plain error, Cadet
must show that there was (1) error (2) that was plain, (3) that affected his substantial rights, and
(4) that seriously affected the fairness, integrity, or public reputation of the proceedings. Id. The
first and second parts of this test are easily met because the district court was operating under the
premise that the federal sentencing guidelines were mandatory. Because we vacate Cadet’s
sentence on another ground and remand for re-sentencing, we need not reach the third prong of
the plain error standard. The district court will have an opportunity to sentence Cadet using an
advisory federal sentencing guidelines system on remand.
2
The government, Cadet, and the district court properly complied with the procedural
requirements outlined in 21 U.S.C. § 851.
3
Cadet had a prior conviction for possession with intent to sell, manufacture, or
deliver marijuana. Cadet, asserting that the plea in the alleged prior conviction was
involuntary and based upon ineffective assistance of counsel, filed a notice of
challenge to the validity and applicability of the alleged prior conviction. After
briefing and a hearing on this sentencing issue, the district court determined that
the alleged prior conviction was constitutional and that Cadet was subject to an
enhancement under § 851.
The district court ultimately sentenced Cadet to concurrent sentences of 120
months on the cocaine base charge and 78 months on the marijuana charge
followed by a consecutive sentence of 60 months on the firearm charge for a total
of 180 months of incarceration.
II.DISCUSSION
Section 841 of Title 21 provides that, if a person violates the statute “after a
prior conviction for a felony drug offense has become final, such person shall be
sentenced to a term of imprisonment which may not be less than 10 years and not
more than life imprisonment.” 21 U.S.C. § 841(b)(1)(B). After the government
files an information stating the previous conviction to be relied upon, the defendant
may deny the conviction or claim that the conviction was invalid by filing a written
response. See 21 U.S.C. § 851(a) and (c). The defendant has the burden of
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proving by a preponderance of the evidence that a prior conviction is
constitutionally invalid. See 21 U.S.C. § 851(c)(2). Cadet argues that his
underlying alleged prior state conviction, a withhold of adjudication, was
unconstitutional as the result of an unknowing and involuntary guilty plea due to
ineffective assistance of counsel. Therefore, he argues, an enhancement based on
this withhold of adjudication was inappropriate. At a hearing on this issue, the
district court concluded that Cadet’s state court counsel was not ineffective and the
alleged prior conviction was valid.
We review “mixed questions of law and fact raised in an ineffective
assistance of counsel claim de novo, and review the district court’s findings of fact
for clear error.” Carr v. Schofield, 364 F.3d 1246, 1264 (11th Cir.), cert. denied,
125 S. Ct. 815 (2004) (in the context of a petition for writ of habeas corpus under
28 U.S.C. § 2254). “[T]he voluntariness of the plea depends on whether counsel’s
advice was within the range of competence demanded of attorneys in criminal
cases.” Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (citation and
internal quotation omitted). To succeed on an ineffective assistance of counsel
claim, a defendant must show by a preponderance of the evidence that (1)
counsel’s performance was deficient, and (2) this deficiency resulted in prejudice.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To
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prove prejudice, it must be shown that “there is reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S. Ct. at 2068. This two-part standard is applicable to
ineffective assistance of counsel claims arising out of the plea process. Hill, 474
U.S. at 57, 106 S. Ct. at 370. Cadet alleges that he was prejudiced by counsel’s
deficient performance because he would not have pleaded guilty if his state court
counsel had advised him of the federal sentencing enhancement consequences of
his guilty plea.
In United States v. McCarthy, we rejected the argument that the state trial
court, counsel, or the prosecutor are constitutionally required to warn the defendant
that his guilty plea could have sentencing consequences if he was later convicted in
federal court.” 320 F.3d 1230, 1234 (11th Cir. 2003). We stated that “these
potential consequences are clearly collateral” and neither the court nor counsel
“were constitutionally required to make him aware of them.” Id.; see also Wright
v. United States, 624 F.2d 557, 561 (11th Cir. 1980) (“[A] plea’s possible
enhancing effect on a subsequent sentence is merely a collateral consequence of
the conviction; it is not the type of consequence about which a defendant must be
advised before the defendant enters the plea.”). Nevertheless, we discern an
important difference between a failure to inform and affirmative misinformation.
6
See Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989). “Counsel’s
affirmative misrepresentation in response to a specific inquiry from the defendant
may, however, under certain circumstances, constitute ineffective assistance of
counsel.” United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir. 1985).
Thus, at issue, is whether the statements of Cadet’s state court counsel were
affirmative misrepresentations.
Although Cadet did not specifically ask his counsel if his plea could be used
to enhance his sentence if he were later convicted in a federal court, he indicated
his concern about a criminal record in his discussions with his counsel prior to
entering the guilty plea.3 Cadet’s state court counsel advised him that by accepting
the guilty plea he would have no record, that the plea would not be used against
him in any future proceedings, and that a withhold of adjudication of guilt meant
there would be no adjudication of guilt, no criminal record, and no adverse
consequences. Cadet argues that this advice was affirmative misinformation.
According to Cadet, the result of counsel’s misinformation is that he entered his
guilty plea under the mistaken belief that he was not a felon.
Cadet was informed by counsel and the state court judge that his withhold of
adjudication could potentially have some adverse effects, i.e., due to his plea he
3
At the initial sentencing hearing on January 27, 2004, this factual proffer was accepted
by the government and the district court.
7
could lose his driver’s license or be deported if an alien, but he was also
specifically told that he was not a felon as a result of his guilty plea. Thus, the
district court erred in finding that Cadet’s alleged prior conviction was
constitutionally valid and applying the § 851 enhancement.
III.CONCLUSION
We affirm the district court’s denial of Cadet’s motion to suppress and
motion for judgment of acquittal. We vacate Cadet’s sentence and remand to the
district court for re-sentencing consistent with this opinion and the Supreme
Court’s decision in Booker.
CONVICTIONS AFFIRMED; SENTENCE VACATED AND
REMANDED FOR RE-SENTENCING.
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