United States v. Newell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4843
BRYANT NEWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-00-146)
Submitted: July 10, 2003
Decided: July 24, 2003
Before WILKINSON and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Anthony D. Martin, SOLOMON & MARTIN, Greenbelt, Maryland,
for Appellant. Thomas M. DiBiagio, United States Attorney, Angela
R. White, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
2 UNITED STATES v. NEWELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Bryant Newell appeals his conviction and sentence of 262 months’
imprisonment pursuant to his guilty plea to conspiracy to distribute
and possess with intent to distribute cocaine base, in violation of 21
U.S.C. § 846 (2000). Newell argues that at his Fed. R. Crim. P. 11
hearing, the district court failed to ensure he understood the nature of
the charge. Additionally, counsel, citing Anders v. California, 386
U.S. 738 (1967), argues that Newell was provided ineffective assis-
tance of counsel, the district court failed to make a specific finding
as to drug quantity, and the indictment was insufficient, but states
that, in his view, these issues are not meritorious. Finding no revers-
ible error, we affirm.
Newell contends the district court failed to ensure he understood
the nature of the conspiracy charge to which he pled guilty and the
consequences that attached to the finding of guilt. Newell did not
object before the district court, accordingly, Newell’s allegations are
reviewed for plain error. See United States v. Vonn, 535 U.S. 55(2002). To meet the plain error standard (1) there must be an error;
(2) the error must be plain; and (3) the error must affect substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). To establish
that his substantial rights were affected, Newell must demonstrate that
absent the error, he would not have entered his guilty plea. See United
States v. Martinez, 277 F.3d 517, 532 (4th Cir.), cert. denied, 123 S.
Ct. 200 (2002). This Court may consider the entire record when con-
sidering the effect of any error on Newell’s substantial rights. Vonn,
535 U.S. at 74-75. If these three elements are met, the Court may
exercise its discretion to notice the error only if the error seriously
affects "the fairness, integrity, or public reputation of judicial pro-
ceedings." Olano, 507 U.S. at 732 (citation omitted).
In conducting the Rule 11 inquiry, the district court must inform
UNITED STATES v. NEWELL 3
the defendant of, and determine the defendant understands, "the
nature of the charge to which the plea is offered, the mandatory mini-
mum penalty provided by law, if any, and the maximum possible pen-
alty provided by law." Fed. R. Crim. P. 11(c)(1).* A judge has wide
discretion in determining how to ensure the defendant’s understand-
ing; however, "it is essential that the defendant receive notice of the
true nature of the charge rather than a rote recitation of the elements
of the offense." Martinez, 277 F.3d at 530 (internal quotations and
citation omitted).
The district court did not explain the conspiracy charge to Newell,
nor did the district court explain the minimum and maximum penal-
ties. Assuming the district court committed error, we have reviewed
the joint appendix and the parties’ briefs and find Newell has not
shown that absent the Rule 11 error, he would have rejected the Gov-
ernment’s plea agreement. See Vonn, 535 U.S. at 74-75; Martinez,
277 F.3d at 532. Accordingly, Newell has not demonstrated that the
error affected his substantial rights.
Newell also argues he did not have a full understanding of the
guilty plea and its consequences. This argument contradicts Newell’s
statements at his Rule 11 proceedings that he understood the conse-
quences of his guilty plea, and we find Newell is bound by those
statements. See United States v. Lambey, 974 F.2d 1389, 1395 (4th
Cir. 1992).
Pursuant to Anders v. California, 386 U.S. 738 (1967), Newell
raises four other claims. First, Newell alleges trial counsel provided
ineffective assistance because counsel failed to advise him to seek to
withdraw his guilty plea in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Newell also alleges counsel provided ineffective assis-
tance by failing to explain the enhancement provisions of the Federal
Sentencing Guidelines. Ineffective assistance of counsel claims are
generally not cognizable on direct appeal unless the record conclu-
sively establishes ineffective assistance of counsel. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). To allow for adequate devel-
*We cite to the pre-amendment version of the Federal Rules of Crimi-
nal Procedure, which was in effect at the time of Newell’s Fed. R. Crim.
P. 11 colloquy.
4 UNITED STATES v. NEWELL
opment of the record, the presumptive rule is that ineffective assis-
tance of counsel claims must be pursued in a 28 U.S.C. § 2255 (2000)
motion. United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). We
find the record does not conclusively show Newell’s counsel provided
ineffective assistance; therefore, Newell must raise these issues, if at
all, in a § 2255 motion.
Newell also contends the district court erred by failing to ensure
there was a factual basis for the plea. To the extent Newell attacks the
district court’s conduct at sentencing, Newell waived his right to
appeal his sentence in his plea agreement and does not assert the
waiver is invalid. To the extent Newell argues the district court failed
to adequately determine a factual basis at the Rule 11 hearing, Newell
stipulated in the plea agreement to a drug amount and to a statement
of facts; further, Newell agreed the statement of facts as related at his
Rule 11 colloquy was correct. We find no error.
Lastly, Newell contends the indictment is insufficient because it
did not allege drug quantity. This issue is reviewed for plain error. See
Olano, 507 U.S. at 732. The parties stipulated that the indictment was
amended to allege the conspiracy involved more than fifty grams of
cocaine base. Even assuming there is error, we have reviewed the par-
ties’ stipulated facts and find the evidence is overwhelming and
essentially uncontroverted that the conspiracy involved more than
fifty grams of cocaine base. See United States v. Shaw, 313 F.3d 219(4th Cir. 2002). Accordingly, we decline to notice any error.
Thus, we affirm Newell’s conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED