Nicole Elizabeth Nicolette
Appellate Attorney in South CarolinaNicole Nicolette is a federal appellate attorney with The Mace Firm who practices in the areas of appellate law, post conviction relief, criminal defense and imigration. Mrs. Mace is admitted to practice law in South Carolina, Florida and Georgia. She is also a member of the United States Court of Appeals for the Fourth Circuit, and in state courts in South Carolina, Florida and Georgia.
Ms. Nicolette served as personal representative on several wrongful death cases, representing the estates of the deceased individuals and their family. She has also served as a Guardian Ad Litem in numerous child custody cases. Her trial experience includes second chairing civil forfeiture cases, drug trafficking cases, conspiracy cases and sentencing hearings in federal court, and participating in various criminal and civil cases at the state level.
She earned her Juris Doctor from Nova Southeastern University, graduating with cum laude honors in 2005. In 2000, she earned her Bachelor of Arts degree in Communication and English from Tulane University.
She writes appellate briefs in many Federal and State Courts and has won cases for many clients on appeal. If you need an appellate attorney, call our office to speak to our appellate attorney.
Education
J.D., Nova, 2004
B.A., Tulane, 2001
Example Federal Briefs
No. 09-4694
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________________
UNITED STATES OF AMERICA,
Plaintiff/appellee,
v.
ROBERT STEED,
Defendant/appellant.
__________________________
On Appeal from the United States District Court
For the District of South Carolina
__________________________
OPENING BRIEF OF THE APPELLANT
ROBERT STEED
___ _________
Nicole N. Mace , Esq.
1341 44th Avenue North
SUITE 205
MYRTLE BEACH, SC 29577
PH: 843-839-2900
FAX: 843-839-2913
EMAIL: nen@themacefirm.com
_____________________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………..………3
STATEMENT OF JURISDICTION…………………………...……..……..5
STATEMENT OF ISSUES………………………………………………….6
STATEMENT OF THE CASE…………………………….………………..7
STATEMENT OF FACTS………………………………………...………...8
SUMMARY OF THE ARGUMENT………..……………….……....…….11
ARGUMENT……………………………………………………...……….12
STANDARD OF REVIEW………………………………………....……..12
CONCLUSION…………………………………………………………….18
STATEMENT REGARDING ORAL ARGUMENT………………….…..18
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES:
Brady v. United States,
397 U.S. 742 (1970)…………………………………………………12
Parke v. Raley,
506 U.S. 205, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)….…………..12
United States v. Bounds,
943 F.2d 541 (5th Cir. 1991) cert. denied,
510 U.S. 845, 114 S.Ct. 135, 126 L.Ed.2d 99 (1993)……………….14
United States v. DeFusco,
949 F.2d 114 (4th Cir. 1991)…………………………………………16
United States v. Goins,
51 F.3d 400 (4th Cir. 1995)………………………………………13, 14
United States v. Good,
25 F.3d 218 (4th Cir. 1994)…………………………………..13, 15, 16
United States v. Hairston,
522 F.3d 336 (4th Cir. 2008)…………………………………………12
United States v. Henry,
893 F.2d 46 (3rd Cir. 1990)…………………………………………..15
United States v. Williams, 977 F2d 866 (4th Cir. 1992) cert. denied,
507 U.S. 942, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993)…………………...16
STATUTES:
18 U.S.C. § 3231…………………………………………………………….5
18 U.S.C. § 3742…………………………………………………………….5
21 U.S.C. § 841(a)(1)………………………………...………………..passim
21 U.S.C. § 841 (b)(1)(B)…….……………………………………….passim
28 U.S.C. § 1291…………………………………………………………….5
OTHER AUTHORITIES:
Fed.R.Crim.P. Rule 11……………………………………………………..13
STATEMENT OF JURISDICTION
This is a criminal case. Keoki Harris was prosecuted under 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), for possession with intent to distribute five (5) grams or more of cocaine base. The United States District Court for the District of South Carolina had jurisdiction of this case pursuant to 18 U.S.C. § 3231 because the appellant was charged with an offense against the laws of the United States.
The appeal is from the final judgment. The Fourth Circuit Court of Appeals has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, which give the courts of appeals jurisdiction over all final decisions and sentences of the district courts of the United States. The District Court imposed sentence on August 10, 2009 and Final Judgment was entered on August 12, 2009. J. A. 6. The appellant filed a notice of appeal on August 12, 2009 and this appeal follows. J. A. 55.
STATEMENT OF THE ISSUES
Keoki Harris raises one issue on appeal:
1. Whether the appellant’s plea was unknowing and failed to comply with Rule 11 of the Federal Rules of Criminal Procedure when the District Court misinformed Harris of his applicable guideline range during his plea hearing.
STATEMENT OF THE CASE
The appellant was the defendant in the district court and will be referred to by name or as the appellant. The appellee, United States of America, will be referred to as the government. The defendant is incarcerated.
Keoki Harris is the sole defendant in a one-count Indictment filed on December 9, 2008. J. A. 9. He was charged with knowingly, intentionally, and unlawfully possessing with intent to distribute five (5) grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B). Harris pled guilty to this count, and the district court accepted his plea of guilt on June 1, 2009. J. A. 17. Prior to his plea of guilty, the district court advised him that he could be sentenced anywhere between 151 months and 188 months imprisonment. J. A. 36.
Harris was sentenced on August 10, 2009. J. A. 40. The District Court concluded that he qualified as a career offender, so his total offense level was thirty-four and his criminal history was increased to a category VI. J. A. 40. He qualified for a three level reduction for his acceptance of responsibility, so his total offense level was reduced to a level thirty-one. J. A. 65. He was sentenced to 188-months imprisonment. J. A. 65. A notice of appeal was filed on August 12, 2009 and this initial brief follows. J. A. 55.
STATEMENT OF FACTS
SUMMARY OF THE ARGUMENT
Harris was erroneously informed that his guideline range was 151 to 188 months imprisonment during his plea hearing, when his actual range subsequently determined by probation and confirmed by the district court was a range from 188 to 235 months imprisonment. Rule 11 of the Federal Rules of Criminal Procedure requires that before a court accepts a plea of guilty, it must personally question the defendant to ensure that he is entering the plea knowingly and voluntarily. During this questioning, the district court “must inform the defendant of, and determine that the defendant understands…any maximum possible penalty, including imprisonment, fine, and term of supervised release and mandatory minimum penalty” that will result from a guilty plea. Therefore, informing a defendant of an inaccurate guideline range is deceptive because it gives a defendant a false belief of what range of imprisonment he is actually facing. The district court repeatedly misinformed Harris of the wrong guideline at his plea hearing, and he pled guilty in part based on this error. Mr. Harris’s plea should therefore be vacated and the case remanded to the district court based on this misrepresentation.
ARGUMENT
1. STANDARD OF REVIEW
Harris challenges his plea of guilt under Rule 11 of the Federal Rules of Criminal Procedure and the Due Process Cause of the United States Constitution, under which any waiver of constitutional rights must be knowingly and voluntarily made. The Court reviews the adequacy of a guilty plea de novo, and in Rule 11 proceedings, violations are evaluated for harmless error. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995).
A guilty plea constitutes a waiver of a defendant’s trial rights, so a guilty plea “not only must be voluntary but must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); Parke v. Raley, 506 U.S. 20, 28-29 (1992). When determining whether an error occurring during plea colloquy affected a defendant’s substantial rights and was not harmless, the reviewing court considers what information was provided to the defendant when he pleaded guilty, what additional information would have been provided by a proper Rule 11 colloquy, and how the additional information would have affected the decision to plead guilty. United States v. Hairston, 522 F.3d 336 (4th Cir. 2008). The failure to provide the appellant with the presentence investigation report is reviewable for plain error. Plain error is an error that: (1) is plain or clear; (2) affects substantial rights; and (3) seriously affects “the fairness, integrity, or public reputation of judicial proceedings.” United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993); see also United States v. Jacques, 345 F.3d 960 (7th Cir. 2003); United States v. Gray, 323 F.3d 491, 492 (7th Cir. 2003). The appellant’s argument that his plea was coerced is a forfeited Rule 11 error and is also subject to plain error review. U.S. v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006) citing United States v. Vonn, 535 U.S. 55, 59-62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).
DISCUSSION OF ISSUES
I. MR. HARRIS’ GUILTY PLEA IS INVALID BECAUSE THE DISTRICT COURT PROVIDED HIM WITH INACCURATE AND MISLEADING INFORMATION REGARDING HIS POTENTIAL TERM OF IMPRISONMENT.
The 14th Amendment Due Process Clause requires that a guilty plea be knowingly and voluntarily entered because it involves the waiver of many basic constitutional rights, and because it is a self-imposed verdict. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995). The Supreme Court has held that because a plea of guilty is itself a conviction, it “shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” United States v. Wetterlin, 583 F.2d 346, 349 (7th Cir. 1978); citing Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Therefore, Rule 11 of the Federal Rules of Criminal Procedure requires the court to engage in a colloquy with the pleading defendant in order to determine that the plea is voluntary and that he understands the nature and consequences of the plea. Fed.R.Crim.P. 11(b)(1) and (2).
Rule 11 of the Federal Rules of Criminal Procedure requires that before a court accepts a plea of guilty, it must personally question the defendant to ensure that he is entering the plea knowingly and voluntarily. Fed. R. Crim. P. 11; see also United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994). During this questioning, the district court “must inform the defendant of, and determine that the defendant understands…any maximum possible penalty, including imprisonment, fine, and term of supervised release and mandatory minimum penalty” that will result from a guilty plea. Fed. R. Crim. P. 11(b)(1)(H)-(I).
For example, in United States v. Goins, 51 F.3d 400, 401 (4th Cir. 1995), the defendant faced a mandatory minimum sentence of five years, however, when he pleaded guilty, the district court failed to inform him of this mandatory minimum sentence. On appeal, this Court held the error was not harmless and reversed, noting that there was “no evidence in the record that Goins was aware that he was subjecting himself to a mandatory five year sentence by pleading guilty.” Id at 405. However, the Court recognized that a district court’s failure to inform a defendant of a mandatory minimum sentence may be harmless if the record shows, “the defendant knew of the mandatory minimum, despite the court’s failure to mention it during the Rule 11 colloquy.” Id at 402.
According to the Goins opinion, plea agreements and indictments sometime inform a defendant of a mandatory minimum sentence. Id at 404. However, as noted in Goins, it is well-settled that presentence reports never can cure Rule 11 violations because “a written presentence report is not an adequate substitute for the advice clearly required by Rule 11.” Id at 404; quoting United States v. Bounds, 943 F.2d 541, 546 n. 4 (5th Cir. 1991) cert. denied, 510 U.S. 845, 114 S.Ct. 135, 126 L.Ed.2d 99 (1993). Additionally, the Court in Goins rejected the government’s argument that the complexity of a sentencing scheme may excuse a district court from the obligations under Rule 11, a defendant must be made aware of the maximum sentence he faces after a guilty plea. Goins, 51 F.3d at 404.
In the present case, Harris was informed that he faced a mandatory minimum sentence of five years and a maximum sentence of forty years pursuant to 21 U.S.C. § 841(b)(1)(B). Harris could be sentenced to as little of five years or as much as forty years pursuant to the statute. Therefore, he relied on the guideline range presented by the court during his guilty plea as an accurate depiction of his potential term of imprisonment when determining whether to plead guilty or to proceed with a jury trial. Although it is not required under Rule 11 to inform a defendant of his applicable guideline range at his plea hearing, informing a defendant of an inaccurate guideline range is deceptive because it gives a defendant a false belief of what range of imprisonment he is actually facing. As noted by the Third Circuit in United States v. Henry, 893 F.2d 46, 48-49 (3rd Cir. 1990), “any estimate of the guideline range that the district court would give in advance of the presentence report might well turn out to be misleading and could be the basis for a contention that the guilty plea should be invalidated.” See also Good, 25 F.3d at 223.
During his plea hearing, Harris was repeatedly informed by his counsel, the government, and the district court that if he qualified as a career offender, his guideline range would be from 151 to 188 months imprisonment. J. A. 35, 36. According to the presentence investigation report, Harris did qualify as a career offender, so his criminal history category was increased to a level VI, and his total offense level was 31. J. A. 65. As a result, during his sentencing hearing, the government stated and the district court agreed that Harris’s guideline range was actually 188 to 235 months imprisonment. J. A. 41. His minimum range was increased by 37 (from 151 to 188) months and his maximum range was increased by 47 (from 188 to 235) months from what he was told during his plea hearing. Harris’s plea is therefore invalid because he erroneously believed that he was eligible for a minimum sentence of 151 months and pled guilty in part based on that representation by the court. He was not aware that the maximum sentence he could receive under the guidelines was actually 235 months imprisonment at the time of his plea. His plea was therefore based on a factual misrepresentation by the district court; it cannot amount to a harmless error.
The appellant acknowledges that this Circuit has held that Rule 11 does not require that a district court advise a defendant about the applicable guideline range before accepting a guilty plea. See Good, 25 F.3d at 222-23; citing United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); United States v. Williams, 977 F2d 866, 870 (4th Cir. 1992) cert. denied, 507 U.S. 942, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993). However, in DeFusco and Williams, the district court did not advise the defendant of any possible guideline range. In the present case, the district court expressly mis-informed Harris that he faced a guideline range of 151 to 188 months imprisonment, when he actually faced a guideline range of 188 to 235 months imprisonment. The government also agreed with the appellant’s attorney that his guideline range was 151-188 during the plea hearing. Harris was in fact facing a substantial increase in possible time in prison then stated by the court. Neither the indictment, nor the plea agreement contains his applicable guideline range, so Harris was not aware of his actual guideline range until he received his pre-sentence investigation report. As mentioned above, this does not cure the error by the district court made during his plea hearing.
Harris’ presentence report does not contain a sophisticated sentencing scheme, it was relatively straightforward. It therefore would not have been difficult to calculate the correct guideline range at the time he entered into a guilty plea. Mr. Harris’s plea should therefore be vacated and the case remanded to the district court based on this misrepresentation.
CONCLUSION
Based upon the foregoing argument and citations of authority, the Appellant, Mr. Harris, should be afforded relief from the 188-month prison sentence imposed against him. Accordingly, Mr. Harris respectfully requests that this Court reverse his plea and sentence and remand his case to the District Court.
Respectfully Submitted,
Keoki Harris
By: /s/ Russell W. Mace III
Attorney for Appellant
STATEMENT REGARDING ORAL ARGUMENT
The appellant respectfully submits that oral argument is necessary to the just resolution of this appeal and will significantly enhance the decision making process.
Russell W. Mace III
The Mace Firm
1341 44th Avenue North
Suite 205
Myrtle Beach, SC 29577
(843) 839-2900
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT C. STEED, a/k/a Rob, a/k/a Robert Sneed,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:06-cr-00960-SB-1)
Submitted: February 4, 2011 Decided: March 21, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicole N. Mace, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. William N. Nettles, United States Attorney, Peter T. Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Robert C. Steed pled guilty pursuant to a plea agreement to one count of conspiracy to possess with intent to distribute fifty grams or more of crack cocaine and 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B) (2006), and one count of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C). Based on a prior felony drug conviction, Steed was sentenced to the statutory minimum twenty year sentence. On appeal, Steed claims the following: (1) the district court failed to ascertain during the Rule 11 hearing whether he understood that there was a twenty-year statutory mandatory minimum sentence; (2) his sentence was improperly enhanced because the Government did not provide timely notice under 18 U.S.C. § 851 (2006) and the court failed to inquire if he wanted to challenge the predicate conviction in the § 851 notice; (3) he had insufficient time to review the Presentence Investigation Report; and even if the alleged errors alone are insufficient to provide relief, (4) under the cumulative error doctrine the combined effect of the errors affected his substantial rights. We affirm.
Because Steed failed to raise any of these challenges to the district court, our review is for plain error. See United States v. Ellis, 326 F.3d 593, 598 (4th Cir. 2003);
3
United States v. General, 278 F.3d 389, 394 (4th Cir. 2002). “To establish plain error, [Steed] must show that an error occurred, that the error was plain, and the error affected his substantial rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Steed makes this three-part showing, this court may exercise its discretion to correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (internal quotation marks omitted).
We conclude Steed has failed to show that his substantial rights were violated. It is clear from the record that Steed was giving sufficient notice of the fact that his sentence would be increased based on a prior felony drug conviction and that as a result of the increase, his statutory minimum sentence was twenty years’ imprisonment. He has failed to show that there was any error in using the prior conviction to enhance his sentence or that there was some other error or defect with the resulting statutory minimum sentence. Furthermore, we conclude Steed did not show his substantial rights were violated when he claimed he did not see the presentence investigation report before sentencing. We further conclude that the cumulative error doctrine is of no help to
4
Steed. See United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).
Accordingly, we affirm the conviction and sentence. 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.
AFFIRMED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________________
UNITED STATES OF AMERICA,
Plaintiff/appellee,
v.
ROBERT STEED,
Defendant/appellant.
__________________________
On Appeal from the United States District Court
For the District of South Carolina
__________________________
OPENING BRIEF OF THE APPELLANT
ROBERT STEED
___ _________
Nicole N. Mace , Esq.
1341 44th Avenue North
SUITE 205
MYRTLE BEACH, SC 29577
PH: 843-839-2900
FAX: 843-839-2913
EMAIL: nen@themacefirm.com
_____________________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………..………3
STATEMENT OF JURISDICTION…………………………...……..……..5
STATEMENT OF ISSUES………………………………………………….6
STATEMENT OF THE CASE…………………………….………………..7
STATEMENT OF FACTS………………………………………...………...8
SUMMARY OF THE ARGUMENT………..……………….……....…….11
ARGUMENT……………………………………………………...……….12
STANDARD OF REVIEW………………………………………....……..12
CONCLUSION…………………………………………………………….18
STATEMENT REGARDING ORAL ARGUMENT………………….…..18
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES:
Brady v. United States,
397 U.S. 742 (1970)…………………………………………………12
Parke v. Raley,
506 U.S. 205, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)….…………..12
United States v. Bounds,
943 F.2d 541 (5th Cir. 1991) cert. denied,
510 U.S. 845, 114 S.Ct. 135, 126 L.Ed.2d 99 (1993)……………….14
United States v. DeFusco,
949 F.2d 114 (4th Cir. 1991)…………………………………………16
United States v. Goins,
51 F.3d 400 (4th Cir. 1995)………………………………………13, 14
United States v. Good,
25 F.3d 218 (4th Cir. 1994)…………………………………..13, 15, 16
United States v. Hairston,
522 F.3d 336 (4th Cir. 2008)…………………………………………12
United States v. Henry,
893 F.2d 46 (3rd Cir. 1990)…………………………………………..15
United States v. Williams, 977 F2d 866 (4th Cir. 1992) cert. denied,
507 U.S. 942, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993)…………………...16
STATUTES:
18 U.S.C. § 3231…………………………………………………………….5
18 U.S.C. § 3742…………………………………………………………….5
21 U.S.C. § 841(a)(1)………………………………...………………..passim
21 U.S.C. § 841 (b)(1)(B)…….……………………………………….passim
28 U.S.C. § 1291…………………………………………………………….5
OTHER AUTHORITIES:
Fed.R.Crim.P. Rule 11……………………………………………………..13
STATEMENT OF JURISDICTION
This is a criminal case. Keoki Harris was prosecuted under 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), for possession with intent to distribute five (5) grams or more of cocaine base. The United States District Court for the District of South Carolina had jurisdiction of this case pursuant to 18 U.S.C. § 3231 because the appellant was charged with an offense against the laws of the United States.
The appeal is from the final judgment. The Fourth Circuit Court of Appeals has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, which give the courts of appeals jurisdiction over all final decisions and sentences of the district courts of the United States. The District Court imposed sentence on August 10, 2009 and Final Judgment was entered on August 12, 2009. J. A. 6. The appellant filed a notice of appeal on August 12, 2009 and this appeal follows. J. A. 55.
STATEMENT OF THE ISSUES
Keoki Harris raises one issue on appeal:
1. Whether the appellant’s plea was unknowing and failed to comply with Rule 11 of the Federal Rules of Criminal Procedure when the District Court misinformed Harris of his applicable guideline range during his plea hearing.
STATEMENT OF THE CASE
The appellant was the defendant in the district court and will be referred to by name or as the appellant. The appellee, United States of America, will be referred to as the government. The defendant is incarcerated.
Keoki Harris is the sole defendant in a one-count Indictment filed on December 9, 2008. J. A. 9. He was charged with knowingly, intentionally, and unlawfully possessing with intent to distribute five (5) grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B). Harris pled guilty to this count, and the district court accepted his plea of guilt on June 1, 2009. J. A. 17. Prior to his plea of guilty, the district court advised him that he could be sentenced anywhere between 151 months and 188 months imprisonment. J. A. 36.
Harris was sentenced on August 10, 2009. J. A. 40. The District Court concluded that he qualified as a career offender, so his total offense level was thirty-four and his criminal history was increased to a category VI. J. A. 40. He qualified for a three level reduction for his acceptance of responsibility, so his total offense level was reduced to a level thirty-one. J. A. 65. He was sentenced to 188-months imprisonment. J. A. 65. A notice of appeal was filed on August 12, 2009 and this initial brief follows. J. A. 55.
STATEMENT OF FACTS
SUMMARY OF THE ARGUMENT
Harris was erroneously informed that his guideline range was 151 to 188 months imprisonment during his plea hearing, when his actual range subsequently determined by probation and confirmed by the district court was a range from 188 to 235 months imprisonment. Rule 11 of the Federal Rules of Criminal Procedure requires that before a court accepts a plea of guilty, it must personally question the defendant to ensure that he is entering the plea knowingly and voluntarily. During this questioning, the district court “must inform the defendant of, and determine that the defendant understands…any maximum possible penalty, including imprisonment, fine, and term of supervised release and mandatory minimum penalty” that will result from a guilty plea. Therefore, informing a defendant of an inaccurate guideline range is deceptive because it gives a defendant a false belief of what range of imprisonment he is actually facing. The district court repeatedly misinformed Harris of the wrong guideline at his plea hearing, and he pled guilty in part based on this error. Mr. Harris’s plea should therefore be vacated and the case remanded to the district court based on this misrepresentation.
ARGUMENT
1. STANDARD OF REVIEW
Harris challenges his plea of guilt under Rule 11 of the Federal Rules of Criminal Procedure and the Due Process Cause of the United States Constitution, under which any waiver of constitutional rights must be knowingly and voluntarily made. The Court reviews the adequacy of a guilty plea de novo, and in Rule 11 proceedings, violations are evaluated for harmless error. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995).
A guilty plea constitutes a waiver of a defendant’s trial rights, so a guilty plea “not only must be voluntary but must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); Parke v. Raley, 506 U.S. 20, 28-29 (1992). When determining whether an error occurring during plea colloquy affected a defendant’s substantial rights and was not harmless, the reviewing court considers what information was provided to the defendant when he pleaded guilty, what additional information would have been provided by a proper Rule 11 colloquy, and how the additional information would have affected the decision to plead guilty. United States v. Hairston, 522 F.3d 336 (4th Cir. 2008). The failure to provide the appellant with the presentence investigation report is reviewable for plain error. Plain error is an error that: (1) is plain or clear; (2) affects substantial rights; and (3) seriously affects “the fairness, integrity, or public reputation of judicial proceedings.” United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993); see also United States v. Jacques, 345 F.3d 960 (7th Cir. 2003); United States v. Gray, 323 F.3d 491, 492 (7th Cir. 2003). The appellant’s argument that his plea was coerced is a forfeited Rule 11 error and is also subject to plain error review. U.S. v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006) citing United States v. Vonn, 535 U.S. 55, 59-62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).
DISCUSSION OF ISSUES
I. MR. HARRIS’ GUILTY PLEA IS INVALID BECAUSE THE DISTRICT COURT PROVIDED HIM WITH INACCURATE AND MISLEADING INFORMATION REGARDING HIS POTENTIAL TERM OF IMPRISONMENT.
The 14th Amendment Due Process Clause requires that a guilty plea be knowingly and voluntarily entered because it involves the waiver of many basic constitutional rights, and because it is a self-imposed verdict. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995). The Supreme Court has held that because a plea of guilty is itself a conviction, it “shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” United States v. Wetterlin, 583 F.2d 346, 349 (7th Cir. 1978); citing Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Therefore, Rule 11 of the Federal Rules of Criminal Procedure requires the court to engage in a colloquy with the pleading defendant in order to determine that the plea is voluntary and that he understands the nature and consequences of the plea. Fed.R.Crim.P. 11(b)(1) and (2).
Rule 11 of the Federal Rules of Criminal Procedure requires that before a court accepts a plea of guilty, it must personally question the defendant to ensure that he is entering the plea knowingly and voluntarily. Fed. R. Crim. P. 11; see also United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994). During this questioning, the district court “must inform the defendant of, and determine that the defendant understands…any maximum possible penalty, including imprisonment, fine, and term of supervised release and mandatory minimum penalty” that will result from a guilty plea. Fed. R. Crim. P. 11(b)(1)(H)-(I).
For example, in United States v. Goins, 51 F.3d 400, 401 (4th Cir. 1995), the defendant faced a mandatory minimum sentence of five years, however, when he pleaded guilty, the district court failed to inform him of this mandatory minimum sentence. On appeal, this Court held the error was not harmless and reversed, noting that there was “no evidence in the record that Goins was aware that he was subjecting himself to a mandatory five year sentence by pleading guilty.” Id at 405. However, the Court recognized that a district court’s failure to inform a defendant of a mandatory minimum sentence may be harmless if the record shows, “the defendant knew of the mandatory minimum, despite the court’s failure to mention it during the Rule 11 colloquy.” Id at 402.
According to the Goins opinion, plea agreements and indictments sometime inform a defendant of a mandatory minimum sentence. Id at 404. However, as noted in Goins, it is well-settled that presentence reports never can cure Rule 11 violations because “a written presentence report is not an adequate substitute for the advice clearly required by Rule 11.” Id at 404; quoting United States v. Bounds, 943 F.2d 541, 546 n. 4 (5th Cir. 1991) cert. denied, 510 U.S. 845, 114 S.Ct. 135, 126 L.Ed.2d 99 (1993). Additionally, the Court in Goins rejected the government’s argument that the complexity of a sentencing scheme may excuse a district court from the obligations under Rule 11, a defendant must be made aware of the maximum sentence he faces after a guilty plea. Goins, 51 F.3d at 404.
In the present case, Harris was informed that he faced a mandatory minimum sentence of five years and a maximum sentence of forty years pursuant to 21 U.S.C. § 841(b)(1)(B). Harris could be sentenced to as little of five years or as much as forty years pursuant to the statute. Therefore, he relied on the guideline range presented by the court during his guilty plea as an accurate depiction of his potential term of imprisonment when determining whether to plead guilty or to proceed with a jury trial. Although it is not required under Rule 11 to inform a defendant of his applicable guideline range at his plea hearing, informing a defendant of an inaccurate guideline range is deceptive because it gives a defendant a false belief of what range of imprisonment he is actually facing. As noted by the Third Circuit in United States v. Henry, 893 F.2d 46, 48-49 (3rd Cir. 1990), “any estimate of the guideline range that the district court would give in advance of the presentence report might well turn out to be misleading and could be the basis for a contention that the guilty plea should be invalidated.” See also Good, 25 F.3d at 223.
During his plea hearing, Harris was repeatedly informed by his counsel, the government, and the district court that if he qualified as a career offender, his guideline range would be from 151 to 188 months imprisonment. J. A. 35, 36. According to the presentence investigation report, Harris did qualify as a career offender, so his criminal history category was increased to a level VI, and his total offense level was 31. J. A. 65. As a result, during his sentencing hearing, the government stated and the district court agreed that Harris’s guideline range was actually 188 to 235 months imprisonment. J. A. 41. His minimum range was increased by 37 (from 151 to 188) months and his maximum range was increased by 47 (from 188 to 235) months from what he was told during his plea hearing. Harris’s plea is therefore invalid because he erroneously believed that he was eligible for a minimum sentence of 151 months and pled guilty in part based on that representation by the court. He was not aware that the maximum sentence he could receive under the guidelines was actually 235 months imprisonment at the time of his plea. His plea was therefore based on a factual misrepresentation by the district court; it cannot amount to a harmless error.
The appellant acknowledges that this Circuit has held that Rule 11 does not require that a district court advise a defendant about the applicable guideline range before accepting a guilty plea. See Good, 25 F.3d at 222-23; citing United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); United States v. Williams, 977 F2d 866, 870 (4th Cir. 1992) cert. denied, 507 U.S. 942, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993). However, in DeFusco and Williams, the district court did not advise the defendant of any possible guideline range. In the present case, the district court expressly mis-informed Harris that he faced a guideline range of 151 to 188 months imprisonment, when he actually faced a guideline range of 188 to 235 months imprisonment. The government also agreed with the appellant’s attorney that his guideline range was 151-188 during the plea hearing. Harris was in fact facing a substantial increase in possible time in prison then stated by the court. Neither the indictment, nor the plea agreement contains his applicable guideline range, so Harris was not aware of his actual guideline range until he received his pre-sentence investigation report. As mentioned above, this does not cure the error by the district court made during his plea hearing.
Harris’ presentence report does not contain a sophisticated sentencing scheme, it was relatively straightforward. It therefore would not have been difficult to calculate the correct guideline range at the time he entered into a guilty plea. Mr. Harris’s plea should therefore be vacated and the case remanded to the district court based on this misrepresentation.
CONCLUSION
Based upon the foregoing argument and citations of authority, the Appellant, Mr. Harris, should be afforded relief from the 188-month prison sentence imposed against him. Accordingly, Mr. Harris respectfully requests that this Court reverse his plea and sentence and remand his case to the District Court.
Respectfully Submitted,
Keoki Harris
By: /s/ Russell W. Mace III
Attorney for Appellant
STATEMENT REGARDING ORAL ARGUMENT
The appellant respectfully submits that oral argument is necessary to the just resolution of this appeal and will significantly enhance the decision making process.
Russell W. Mace III
The Mace Firm
1341 44th Avenue North
Suite 205
Myrtle Beach, SC 29577
(843) 839-2900
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT C. STEED, a/k/a Rob, a/k/a Robert Sneed,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:06-cr-00960-SB-1)
Submitted: February 4, 2011 Decided: March 21, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicole N. Mace, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. William N. Nettles, United States Attorney, Peter T. Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Robert C. Steed pled guilty pursuant to a plea agreement to one count of conspiracy to possess with intent to distribute fifty grams or more of crack cocaine and 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B) (2006), and one count of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C). Based on a prior felony drug conviction, Steed was sentenced to the statutory minimum twenty year sentence. On appeal, Steed claims the following: (1) the district court failed to ascertain during the Rule 11 hearing whether he understood that there was a twenty-year statutory mandatory minimum sentence; (2) his sentence was improperly enhanced because the Government did not provide timely notice under 18 U.S.C. § 851 (2006) and the court failed to inquire if he wanted to challenge the predicate conviction in the § 851 notice; (3) he had insufficient time to review the Presentence Investigation Report; and even if the alleged errors alone are insufficient to provide relief, (4) under the cumulative error doctrine the combined effect of the errors affected his substantial rights. We affirm.
Because Steed failed to raise any of these challenges to the district court, our review is for plain error. See United States v. Ellis, 326 F.3d 593, 598 (4th Cir. 2003);
3
United States v. General, 278 F.3d 389, 394 (4th Cir. 2002). “To establish plain error, [Steed] must show that an error occurred, that the error was plain, and the error affected his substantial rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Steed makes this three-part showing, this court may exercise its discretion to correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (internal quotation marks omitted).
We conclude Steed has failed to show that his substantial rights were violated. It is clear from the record that Steed was giving sufficient notice of the fact that his sentence would be increased based on a prior felony drug conviction and that as a result of the increase, his statutory minimum sentence was twenty years’ imprisonment. He has failed to show that there was any error in using the prior conviction to enhance his sentence or that there was some other error or defect with the resulting statutory minimum sentence. Furthermore, we conclude Steed did not show his substantial rights were violated when he claimed he did not see the presentence investigation report before sentencing. We further conclude that the cumulative error doctrine is of no help to
4
Steed. See United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).
Accordingly, we affirm the conviction and sentence. 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.
AFFIRMED