United States v. Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4479
RODNEY EUGENE THOMPSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-95-310)
Submitted: January 23, 1997
Decided: February 10, 1997
Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Lisa B. Boggs, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rodney Eugene Thompson pled guilty to a one-count indictment
which charged him with possessing a firearm after being convicted of
a felony, 18 U.S.C. § 922(g)(1) (1994), and violating the armed career
criminal statute, 18 U.S.C. § 924(e) (1994). The district court de-
parted downward for substantial assistance on the government's
motion and imposed a sentence of 209 months. Thompson's attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), questioning the district court's denial of an adjustment for
acceptance of responsibility, USSG § 3E1.1,* but stating that, in his
view, there are no meritorious issues for appeal. Thompson has filed
a pro se supplemental brief raising three issues. Finding no reversible
error, we affirm the conviction and sentence.
The only contested issue at Thompson's sentencing was acceptance
of responsibility. Two police officers testified that Thompson pointed
a .357 revolver at one of the officers during a reverse sting drug deal.
The probation officer testified that Thompson denied knowing there
was a weapon in the car although he had previously told the court at
his change of plea hearing that he knew the gun was in the car. At the
sentencing hearing, Thompson said he had borrowed the car he was
driving and saw the gun between the seats, but did not touch it. The
district court found that Thompson had been "less than candid" and
had not earned the adjustment. The record demonstrates that Thomp-
son changed his story a number of times after his arrest when he per-
ceived some benefit in doing so. Section 3E1.1 calls for truthful
admission of criminal conduct. The district court did not clearly err
in denying the adjustment in this case.
In his pro se brief, Thompson challenges his § 924(e) sentence. He
suggests that his 1977 conviction for breaking and entering may have
been unconstitutionally obtained because the state court record did
not show that he was represented by counsel. Because this issue was
not raised in the district court, we review it for plain error. United
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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States v. Olano, 507 U.S. 725, 734 (1993). At sentencing, a defendant
may challenge the validity of a prior conviction only on the ground
that it was obtained in violation of the right to counsel. Custis v.
United States, 511 U.S. 485, 497 (1994). Thompson does not assert
here that he actually was denied the right to counsel, only that the
record does not establish whether he was respresented. Consequently,
we find that the district court did not commit plain error in finding
that Thompson had the requisite predicate convictions and was an
armed career criminal.
Thompson also claims that the enhanced sentence was not part of
his plea agreement. However, we note that the government had
already filed notice to seek an enhanced sentence when Thompson
signed the plea agreement, and the agreement stated that Thompson
faced a statutory penalty of not less than fifteen years for the offense
charged in the indictment. That fact was also brought out at the
change of plea hearing.
Finally, Thompson contends that the district court erred in accept-
ing his guilty plea before the presentence report had been prepared.
Under Rule 11 of the Federal Rules of Criminal Procedure, the court
is not required to defer acceptance of a plea or a plea agreement. Con-
sequently, the district court did not plainly err in accepting Thomp-
son's guilty plea at the Rule 11 hearing. However, the sentencing
guidelines direct the court to defer acceptance of the agreement and
any nonbinding recommendations. See USSG§ 6B1.1(c), p.s. We
previously recognized but did not resolve the conflict in United States
v. Ewing, 957 F.2d 115, 119 (4th Cir.), cert. denied, 505 U.S. 1210(1992). Here, the court carefully explained to Thompson that his sen-
tence, including any adjustments, would be determined by the court
after preparation of the presentence report and that any recommenda-
tions by the government were not binding. Thompson specifically
questioned the court on this point and consulted with his attorney
before deciding to enter his guilty plea. While the court did not state
that it was deferring acceptance of the plea agreement, it complied
substantially with USSG § 6B1.1(c).
In accordance with Anders, we have examined the entire record in
this case and find no meritorious issues for appeal. Accordingly, the
conviction and sentence are affirmed. This court requires that counsel
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inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. Counsel's motion to withdraw
is therefore denied at this time. If the client requests that a petition be
filed, but counsel believes that such a petition would be frivolous,
then counsel may again move in this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof was
served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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