United States v. Michael McClain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4895
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL PRESTON MCCLAIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1)
Submitted: March 28, 2013 Decided: April 2, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William T. Clarke, SARRATT & CLARKE, Greenville, South Carolina,
for Appellant. Elizabeth Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Preston McClain appeals his conviction and
sentence for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). McClain pled guilty
and was sentenced to 120 months’ imprisonment. On appeal,
counsel for McClain filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal but questioning whether the
district court properly conducted the plea colloquy, whether
trial counsel was ineffective, and whether McClain’s sentence
was reasonable. McClain has filed a supplemental pro se brief,
elaborating on counsel’s arguments and alleging a violation of
his right to due process and a reasonable bond. We affirm.
Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands, the nature of
the charge to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b)(1). The district court also must ensure that the
defendant’s plea was voluntary, was supported by a sufficient
factual basis, and did not result from force or threats. Fed.
R. Crim. P. 11(b)(2), (3). “In reviewing the adequacy of
compliance with Rule 11, this [c]ourt should accord deference to
2
the trial court’s decision as to how best to conduct the
mandated colloquy with the defendant.” United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because McClain did not move the district court to
withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525-26 (4th Cir. 2002). “To establish plain error,
[McClain] must show that an error occurred, that the error was
plain, and that the error affected his substantial rights.”
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
Even if McClain satisfies these requirements, we retain
discretion to correct the error, “which we should not exercise
unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and brackets omitted).
McClain argues that the district court’s Rule 11
colloquy omitted the possible penalties for a violation of
§ 922(g) without the application of the Armed Career Criminal
Act (ACCA) and that, if he had known he was facing a maximum of
ten years under 18 U.S.C. § 924(a)(2) (2006), rather than a
minimum of fifteen years and maximum of life under the ACCA, he
would not have pled guilty. However, it was the Government’s
position at the time of the guilty plea that McClain was subject
to the ACCA such that, even if the district court had stated the
3
penalties for § 922(g) in addition to that of the ACCA, McClain
would have understood he was subject to the ACCA’s mandatory
minimum fifteen-year sentence. Moreover, McClain was informed
at his initial appearance in the district court and by the
penalty sheet filed with the indictment that the maximum penalty
in the absence of the ACCA designation was ten years. We
therefore conclude that the district court’s omission did not
affect McClain’s substantial rights.
McClain also claims that the Rule 11 colloquy was
inadequate because the district court neglected to advise him of
the right to confront and cross-examine adverse witnesses. See
Fed. R. Crim. P. 11(b)(1)(E). To establish that a district
court’s non-compliance with Rule 11 affected substantial rights,
a defendant bears the burden of “show[ing] a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004). McClain has not claimed that he would have gone to
trial if the court had properly advised him of this right. We
conclude that McClain has failed to satisfy his burden and that
the plea was knowing and voluntary and supported by an
independent basis in fact. See DeFusco, 949 F.2d at 116, 119-
20.
McClain next claims that trial counsel was ineffective
when he advised McClain that he was subject to the ACCA.
4
However, the record does not conclusively establish any
deficient performance of counsel in this regard. See United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (providing
standard); United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). We therefore conclude that the ineffective
assistance claim is not cognizable on direct appeal. Rather, to
permit adequate development of the record, McClain must pursue
such a claim, if at all, in an appropriate proceeding for post-
conviction relief. United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010).
McClain claims that the Government made
misrepresentations that he was subject to the ACCA such that he
was denied his right to due process and his right to a
reasonable bond. A valid, counseled guilty plea waives all
antecedent, non-jurisdictional defects “not logically
inconsistent with the valid establishment of factual guilt and
which do not stand in the way of conviction if factual guilt is
validly established.” Menna v. New York, 423 U.S. 61, 62 n.2
(1975); see Tollett v. Henderson, 411 U.S. 258, 267 (1973).
McClain’s valid, unconditional guilty plea forecloses appellate
review of these claims.
Finally, McClain asserts that the district court
should not have considered the underlying assault as relevant
conduct because he had not been convicted of that offense in
5
state court. However, “[a] court may increase a defendant’s
sentence for uncharged and unconvicted relevant conduct provided
that the conduct constitutes part of the same course of conduct
or common scheme or plan as the offense of conviction.” United
States v. Johnson, 643 F.3d 545, 551 (7th Cir. 2011) (internal
quotation marks omitted); see United States v. Grubbs, 585 F.3d
793, 798-99 (4th Cir. 2009) (holding that district court may
consider acquitted and uncharged conduct so long as it is proved
by preponderance of evidence). Our review of the record
therefore leads us to conclude that McClain’s within-Guidelines
sentence was neither procedurally nor substantively
unreasonable. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th
Cir. 2010).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore decline to consider McClain’s claim of ineffective
assistance of counsel and affirm the district court’s judgment.
This court requires that counsel inform McClain, in writing, of
the right to petition the Supreme Court of the United States for
further review. If McClain requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
6
representation. Counsel’s motion must state that a copy thereof
was served on McClain.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
7