United States v. Tyndale

UNITED STATES of America, Plaintiff-Appellee,
v.
David George TYNDALE, Defendant-Appellant.
Nos. 94-8073, 94-8077
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
April 20, 2000.
Appeals from the United States District Court for the Northern District of Georgia. (Nos. 92-00141-1-CR-2,
93-00361-1-CR-1), G. Ernest Tidwell, Chief Judge.
Before TJOFLAT and BARKETT, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
David George Tyndale appeals convictions in two separate drug cases. In the first, known as the
Georgia case, he was convicted by a jury on two counts of conspiracy and possession of cocaine with intent
to distribute. See 21 U.S.C. §§ 841(a)(1), 846. In the second, known as the North Carolina case, which had
been transferred to the Northern District of Georgia pursuant to Rule 20 of the Federal Rules of Criminal
Procedure, he pled guilty to one drug count under 21 U.S.C. §§ 841(a)(1) and 846. Sentencing on both cases
was addressed during one hearing. He was sentenced to 240 months on each of the three counts to run
concurrently. He alleges ineffective assistance of counsel for failure to raise an illegal search issue in the
Georgia case. In the North Carolina case, he contends his guilty plea was not voluntary. We affirm the
convictions in both cases.
The Georgia Case. Appeal 94-8073.
On August 15, 1989, in Clayton County, Georgia, state narcotics agents arrested Tyndale during a
search pursuant to warrant for drugs in a co-defendant's apartment where Tyndale was present. Later charged
with possession with the intent to distribute cocaine, conspiracy, and using and carrying a firearm during the
commission of a drug offense, Tyndale was convicted by a jury on two of the three counts. Tyndale argues
that he was denied his sixth amendment right to effective assistance of counsel, because his trial attorney
failed to move to suppress certain evidence.
Generally, claims of ineffective assistance of counsel are not considered for the first time on direct
appeal. See United States v. Arango, 853 F.2d 818, 823 (11th Cir.1988). Although an exception exists in
cases where the record is sufficiently developed, see United States v. Camacho, 40 F.3d 349, 355 (11th
Cir.1994), the record is not complete enough for us to rule on Tyndale's claim. Therefore we affirm this
conviction, without ruling on the ineffective assistance of counsel claim.
The North Carolina Case. Appeal No. 94-8077
While free on bond pending trial in the Georgia case, Tyndale was arrested in Charlotte, North
Carolina for another drug offense on April 3, 1993. After the three count indictment that followed was
transferred from North Carolina to the Northern District of Georgia, Tyndale pled guilty to one count of
conspiracy to possess cocaine with the intent to distribute.
Tyndale argues that his guilty plea was not "voluntary, knowing and intelligent," in violation of the
Fifth Amendment. He contends that at the plea hearing, he was not advised that the ten year minimum
sentence to which he was subject would be automatically enhanced pursuant to 18 U.S.C. § 31471 and USSG
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18 U.S.C. § 3147 states:
A person convicted of an offense committed while released under this chapter shall
be sentenced, in addition to the sentence prescribed for the offense to—
(1) a term of imprisonment of not more than ten years if the offense is a felony; or
(2) a term of imprisonment of not more than one year if the offense is a
misdemeanor.
A term of imprisonment imposed under this section shall be consecutive to any other
sentence of imprisonment.
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§ 2J1.72 because he committed the North Carolina offense while released on bond awaiting trial on the
Georgia offenses.
Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides that before accepting a guilty plea,
the court must, in part, "inform the defendant of, and determine that the defendant understands, ... the
mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law."
When the defendant is informed of a mandatory minimum and maximum statutory sentence at his plea
colloquy and sentenced within that range, we have determined that the failure to advise of a Sentencing
Guidelines sentencing range is harmless error, as long as the defendant knew that the Sentencing Guidelines
existed and that they would affect his sentence. See United States v. Mosley, 173 F.3d 1318, 1327-28 (11th
Cir.1999); United States v. Casallas, 59 F.3d 1173, 1180 (11th Cir.1995).
In the district court, Tyndale did not raise an objection to the plea proceedings, nor did he move to
withdraw the plea. Therefore, we review the district court's compliance with Rule 11 for plain error, which
is error that is clear or obvious and affects substantial rights. See United States v. Quinones, 97 F.3d 473, 475
(11th Cir.1996). A defendant's substantial rights are affected if the district court fails to satisfy any of the
"core objectives" of Rule 11:(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the
defendant understands the nature of the charges against him; and (3) ensuring that the defendant is aware of
the direct consequences of the guilty plea. See Quinones, 97 F.3d at 475. Plain error analysis differs from
harmless error analysis in that the defendant bears the burden of persuasion with respect to prejudice. See
United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
With regard to § 2J1.7 of the Sentencing Guidelines, the district court confirmed during the plea
colloquy that Tyndale knew that the Sentencing Guidelines existed and would affect his sentence. By so
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USSG § 2J1.7 states:
If an enhancement under 18 U.S.C. § 3147 applies, add 3 levels to the offense level for the
offense committed while on release as if this section were a specific offense characteristic
contained in the offense guidelines for the offense committed while on release.
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doing, the district court discharged its responsibility under Rule 11(c) with respect to the effect of the
Guidelines on Tyndale's sentencing range. See Mosley, 173 F.3d at 1327-28; Casallas, 59 F.3d at 1180.
The question, therefore, becomes whether Tyndale was informed of the mandatory minimum
statutory sentence, and if not, whether that failure amounted to plain error. Although § 3147 is a sentence
enhancement statute, it does not specify a minimum enhancement: it requires only that Tyndale "shall" be
sentenced to an additional prison term of "not more than" ten years. Compare 18 U.S.C. § 3147 (1994)
(current statute; no express minimum enhancement), with 18 U.S.C. § 3147 (1988) (former version of statute;
providing for enhancement of "not less than two years and not more than ten years") (emphasis added); see
also USSG § 2J1.7, comment. (backg'd) (noting that although § 3147 provides for a sentence enhancement,
"there is no requirement as to any minimum term"). Even if the phrase "shall be sentenced" means that at
least some enhancement is required by § 3147, the minimum enhancement required by § 3147 would be
negligible. A single additional day of imprisonment or less would apparently suffice to comply with the
statute. Because any enhancement of Tyndale's minimum statutory sentence required by § 3147 would be
de minimus, the failure of the district court to advise Tyndale of any such enhancement had no material effect
on the third "core objective" of Rule 11: ensuring that the defendant is aware of the direct consequences of
the guilty plea. There was no effect on Tyndale's "substantial rights." See Quinones, 97 F.3d at 475.
We conclude that there was no plain error in not notifying Tyndale at the plea hearing of the effect
of § 2J1.7 and § 3147 on his minimum sentence. See United States v. Bozza, 132 F.3d 659, 661-62 (11th
Cir.1998) (no obligation to advise defendant at plea hearing of sentence enhancement pursuant to § 3417 and
§ 2J1.7). We note that the 240-month sentence actually received runs concurrently with the same sentence
on each of the two Georgia counts.
Tyndale also contends that the guilty plea was invalid because the presentence report had not been
completed at the time of his plea. USSG § 6B1.1(c) requires the court to "defer its decision to accept or reject
... any plea agreement pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) until there has been an opportunity to
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consider the presentence report, unless a report is not required under § 6A1.1." Although that guideline, in
some circumstances, may require the court to defer its decision whether or not to accept the plea agreement
until after having considered the presentence report, it does not say that the court must defer its decision
whether to accept the plea until that time. Cf. United States v. Hyde, 520 U.S. 670, 674, 117 S.Ct. 1630, 137
L.Ed.2d 935 (1997) (rejecting position that "equated acceptance of guilty plea with acceptance of plea
agreement").
We affirm this conviction based on Tyndale's guilty plea.
AFFIRMED.
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