United States v. Austin

File Name: 07a0710n.06
Filed: October 3, 2007
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 04-2187
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
BILLY HAVENDRO AUSTIN, COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
Defendant-Appellant.
/
Before: MARTIN and McKEAGUE, Circuit Judges; GREER, District Judge*
BOYCE F. MARTIN, JR., Circuit Judge. Billy Austin appeals his conviction entered under
a plea agreement for armed bank robbery and using and discharging a firearm during and in relation
to a crime of violence. Austin has filed two briefs, one pro se and the other through counsel. In his
pro se brief, Austin contends he received ineffective assistance of counsel. Through counsel, Austin
argues that his plea did not meet the requirements of Federal Rule of Criminal Procedure 11 and that
re-sentencing is required because his sentence was entered pre-Booker.
I.
*
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
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United States v. Austin
Page 2
Austin argues that the district court did not adequately explain each element of the offenses
to which he pled guilty. Under Rule 11, the district court is required to determine in open court
whether the defendant understands “the nature of each charge to which the defendant is pleading;
. . .” Fed. R. Crim. P. 11(b)(1)(G). This Court has stated that in order to adequately meet this
requirement a district court must, in a simple case, read the indictment to the defendant and permit
the defendant to ask questions about the charges, or in a more complex case, explain the nature of
the charges further until the district court is satisfied that the defendant understands the elements of
the offense. See United States v. Syal, 963 F.2d 900, 904-05 (6th Cir. 1992).
The record in the present case demonstrates that the district court adequately assured itself
that Austin understood the nature of the charges to which he pled guilty:
• The district court instructed the government to read the indictment for counts
two and three, to which Austin intended to plead guilty.
• After the government recited counts two and three from the indictment the
district court then summarized the counts and explained that by “aiding and
abetting,” the government intended to show Austin “assisted” in the bank
robbery and the use of a firearm in the bank robbery.
• After the government read the indictment and the district court summarized
the counts and explained “aiding and abetting,” the district court asked Austin
if he understood the charges to which he was pleading guilty. Austin
responded that he understood the charges.
No. 04-2187
United States v. Austin
Page 3
• The district court then asked Austin to “[t]ell me what you did here that you
believe makes you guilty.” Austin then explained what happened on the day
of the robbery, with the district court asking multiple follow-up questions in
order to satisfy itself that there was a factual basis for Austin’s guilty plea on
both counts.
• The district court found that Austin understood the nature of the charges to
which he was pleading guilty.
Based on this record, we do not believe it can be said that Austin did not understand the
nature of the charges to which he plead guilty nor do we believe it can be said that the district court
committed error in satisfying itself that Austin understood the nature of the charges. Accordingly,
this Court finds the district court complied with the requirements of Rule 11 during Austin’s plea
colloquy and did not commit any error.
II.
Both Austin and the government agree that a remand for re-sentencing is warranted here
because his sentence was calculated pre-Booker. We agree as well. See United States v. Barnett,
398 F.3d 516, 526-29 (6th Cir. 2005). Accordingly, this Court remands for de novo re-sentencing
under Booker. See United States v. Settle, 414 F.3d 629, 632 (6th Cir. 2005) (“On remand, the
district court must impose a reasonable sentence that takes into account the sentencing factors set
forth at 18 U.S.C. § 3553(a), as well as the Sentencing Guidelines.”).
III.
No. 04-2187
United States v. Austin
Page 4
Austin raises for the first time in his pro se appeal (which was expressly not adopted by his
appeal through counsel) a claim for ineffective assistance of counsel. “As a general rule, this court
will not review claims of ineffective counsel that are raised for the first time on appeal.” United
States v. Thomas, 74 F.3d 701, 715 (6th Cir. 1996) (internal quotation marks and citations omitted).
“It is appropriate on direct appeal only when the record is adequate to assess the merits of the
defendant[’s] allegations.” United States v. Rahal, 191 F.3d 642, 645 (6th Cir. 1999) (citing United
States v. Kincaide, 145 F.3d 771, 785 (6th Cir.1998)). “Claims of ineffective assistance of counsel
are more properly available in a post-conviction proceeding under 28 U.S.C. § 2255, after the parties
have had the opportunity to develop an adequate record on the issue from which the reviewing court
is capable of arriving at an informed decision.” Id. (citing United States v. Seymour, 38 F.3d 261,
263 (6th Cir.1994)).
Here, the record is insufficient to assess the merits of Austin’s ineffective assistance of
counsel claim. Accordingly, we find the claim unripe and decline to review it for the first time on
direct appeal.
IV.
For the foregoing reasons, we AFFIRM Austin’s conviction, but VACATE his sentence and
REMAND for re-sentencing under Booker. We do not address Austin’s claim of ineffective
assistance of counsel. Motion of appellant to withdraw as counsel of record is hereby granted.