United States v. Matthew Poteet

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10954 ELEVENTH CIRCUIT
DECEMBER 15, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-00067-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW POTEET,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 15, 2005)
Before DUBINA, HULL and RONEY, Circuit Judges.
PER CURIAM:
Appellant Matthew Poteet appeals his conviction and sentence for
possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(ii)(II), based on his plea of guilty. Court appointed counsel,
Charles E. Lykes, Jr., has moved to withdraw from further representation of the
appellant and has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Poteet was given notice of counsel’s motion
to withdraw and the Anders brief, but has not filed a response. The motion to
withdraw is granted, and Poteet’s conviction and sentence are affirmed.
In his written guilty plea to a one count indictment, Poteet waived the right
to appeal his sentence “directly or collaterally, on the ground that the sentencing
guidelines are in any respect unconstitutional, on the grounds that any fact found
by the Court for sentencing was not alleged in the indictment, was not admitted by
the defendant, was not found by a jury, was not found beyond a reasonable doubt,
or was found based upon evidence not admissible under the Federal Rules of
Evidence, and on any other ground, including the applicability of the ‘safety
valve’ provisions contained in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, except
in the following situations: (a) an upward departure by the sentencing judge; (b) a
sentence above the statutory maximum; or (c) a sentence in violation of other law
apart from the sentencing guidelines.” The plea agreement contained a factual
basis that stated that Poteet was going to sell a half-kilogram of cocaine to a
confidential informant for $13,600.
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At the Federal Rules of Criminal Procedure Rule 11 guilty plea hearing
before a magistrate judge, Poteet stated that he was satisfied with his
representation. The record supports the district court’s finding that the plea was
knowing and voluntary. Poteet objected to (1) his criminal history category,
arguing that it significantly over-represented the seriousness of his past criminal
conduct and requested a downward departure to a criminal history category of I,
and (2) the failure to include a downward departure due to his family
responsibilities pursuant to § 5H1.6. The district court recognized it had the
authority to depart downward for over-representation of criminal history, but
found, however, that Poteet’s criminal history was not over-represented such as to
require a criminal history of I. As to Poteet’s argument for a downward departure
based on family responsibilities and § 5H1.6, the district court found that Poteet
created the danger to his family by engaging in drug dealing activities, § 5H1.6 did
not apply, and, even if it did apply, it would not allow Poteet to be sentenced
below the statutory minimum, and the court therefore denied the downward
departure. The district court sentenced Poteet to 60 months’ imprisonment and
four years of supervised release.
The Anders brief properly indicates there are no arguable issues. Any
argument that Poteet’s sentence violated Apprendi v. New Jersey, 530 U.S. 4663
(2000) and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), is
foreclosed by the appeal waiver provision of Poteet’s plea agreement. This issue
has no arguable merit.
This Court has held that broad sentence-appeal waiver provision language,
such as the provision appearing in Poteet’s plea agreement, is enforceable so long
as the defendant enters into the agreement knowingly, intelligently, and
voluntarily. See United States v. Grinnard-Henry, 399 F.3d 1294, 1296 (11th Cir.
2005). Broad waiver language also “covers” Apprendi and Booker grounds.
United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005) (quoting United
States v. Grinnard-Henry, 399 F.3d 1294,1296(11th Cir. 2005); United States v.
Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005)).
Poteet pled guilty to violating 21 U.S.C. § 841(b)(1)(B), which carries a
statutory minimum sentence of five years’ imprisonment. See 21 U.S.C.
§ 841(b)(1)(B). Neither of the exceptions to the statutory minimum apply in this
case: (1) the government did not file a § 5K1.1 motion, as Poteet had stopped
cooperating with the government; and (2) Poteet cannot meet the requirements of
the “safety valve” provision, as he has more than one criminal history point.
Therefore, the district court had no discretion to depart below the statutory
minimum of five years’ imprisonment. See United States v. Simpson, 228 F.3d
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1294, 1303(11th Cir. 1000)(noting that district court has “no discretion to depart
downward from the relevant statutory mandatory minimum sentences”).
An independent review of the entire record shows that the magistrate judge
covered all the required disclosures in Rule 11 and addressed each of the “core
concerns” before accepting Poteet’s plea by determining that he was not coerced
into pleading guilty, by explaining the charges, and by explaining the rights he
relinquished by pleading guilty. United States v. Monroe, 353 F.3d 1346, 1354
(11th Cir. 2003) (“This Court has upheld plea colloquies that fail to address an
item expressly required by Rule 11 so long as the overall plea colloquy adequately
addresses these three core concerns.”); United States v. Bell, 776 F.2d 965, 968
(11th Cir. 1985) (addressing the three “core concerns” of a guilty plea: (1) the
guilty plea is voluntary; (2) the defendant understands the nature of the charges;
and (3) the defendant understands the consequences of his plea.). Independent
review reveals no jurisdictional errors that might have occurred prior to the entry
of the plea. See United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984) (noting
that the entry of a guilty plea waives objection to all non-jurisdictional errors).
Since there is no arguably meritorious basis for challenging Poteet’s
conviction or sentence, counsel’s MOTION TO WITHDRAW IS GRANTED
and Poteet’s CONVICTION AND SENTENCE ARE AFFIRMED.
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