United States v. Farrell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4505
KEVIN KAYVON FARRELL, a/k/a
Kayvon Flowers,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4529
EVERETT VERNELL WILSON, a/k/a
Feigh-Leigh, a/k/a Jamal Wilson
Lobell,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-98-93)
Submitted: June 30, 2000
Decided: July 26, 2000
Before MURNAGHAN, WILKINS, and KING, Circuit Judges.
_________________________________________________________________
No. 99-4505 affirmed and No. 99-4529 dismissed by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina; David B. Freedman, WHITE & CRUMPLER, Winston-
Salem, North Carolina, for Appellants. Walter C. Holton, Jr., United
States Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kevin Kayvon Farrell and Everett Vernell Wilson were charged
with conspiring with each other and with Arthur Paul Moore from
September 1997 to March 1998 to possess with intent to distribute
and distribute crack cocaine in violation of 21 U.S.C. § 846 (1994).
Farrell and Wilson pled guilty to the conspiracy charge.* Wilson also
pled guilty to using or carrying a firearm during and in relation to a
crime of violence. See 18 U.S.C.A. § 924(c) (West 2000). Farrell
challenges the validity of his guilty plea on several grounds. Farrell
and Wilson both challenge their sentences. Farrell also seeks leave to
file a pro se supplemental brief in which he challenges the adequacy
of the Fed. R. Crim. P. 11 proceeding. We grant leave to file the pro
se supplemental brief and affirm Farrell's conviction and sentence,
but dismiss Wilson's appeal for lack of jurisdiction.
Wilson seeks to contest the extent of the district court's downward
departure based on his substantial assistance. We lack jurisdiction to
review a defendant's challenge to the extent of a downward departure.
See United States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995).
_________________________________________________________________
*Moore was tried and convicted of conspiracy.
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Farrell first contends that the district court abused its discretion in
denying his motion to withdraw his guilty plea. See United States v.
Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996) (standard of review). A
defendant who seeks to withdraw his guilty plea before sentencing
must demonstrate a "fair and just reason" for withdrawal of the plea.
Fed. R. Crim. P. 32(e). A "fair and just" reason is one that "essentially
challenges the fairness of the Rule 11 proceeding." United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Applying the test set
out in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), we
find that the district court did not abuse its discretion in denying the
motion. Farrell also asserts that the district court erred in sentencing
him as a career offender by finding that the instant offense occurred
within ten years of a January 1988 sentence for attempted second
degree robbery. Because there was evidence that Farrell was involved
in the conspiracy at least by December 1997, we find no error in the
court's determination.
In the pro se supplemental brief, Farrell contends that his guilty
plea was invalid because the district court failed to inform him about
the maximum punishment to which he was exposed as a result of his
plea, and failed to inform him about the effect of supervised release.
The adequacy of a guilty plea is reviewed de novo. See United States
v. Goins, 51 F.3d 400, 402 (4th Cir. 1995). However, any error in
complying with Rule 11 is harmless if it does not affect substantial
rights. See Fed. R. Crim. P. 11(h); United States v. Thorne, 153 F.3d
130, 133 (4th Cir. 1998).
Farrell was exposed to a mandatory minimum prison term of ten
years and a maximum of life, as set out in his plea agreement. At the
Rule 11 hearing, the district court informed Farrell that he faced a ten-
year mandatory minimum sentence and a five-year term of supervised
release, but failed to explain that the maximum term he could receive
was a life sentence, and failed to explain the effect of the five-year
supervised release term. While the court erred in this respect, the error
was harmless because Farrell's plea agreement informed him that he
was subject to a possible life sentence, see Goins, 51 F.3d at 402-05(failure to inform defendant of mandatory minimum not harmless
when there was no evidence in the record that he was aware of man-
datory minimum sentence), and the total of his sentence of incarcera-
tion (360 months) and the five-year term of supervised release is less
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than the maximum sentence of life in prison. See United States v.
Good, 25 F.3d 218, 220 (4th Cir. 1994) ("[f]ailure to discuss the
nature of supervised release is harmless error if the combined sen-
tence of incarceration and supervised release actually received by the
defendant is less than the maximum term he was told he could
receive."); see also United States v. Young , 927 F.2d 1060, 1062-63
(8th Cir. 1991) (failure to inform defendant of mandatory minimum
sentence harmless when defendant was aware of it).
We therefore affirm Farrell's conviction and sentence. We dismiss
Wilson's appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
No. 99-4505 - AFFIRMED
No. 99-4529 - DISMISSED
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