United States v. Battle

499 F.3d 315, 2007 U.S. App. LEXIS 21183, 2007 WL 2484936
CourtCourt of Appeals for the Fourth Circuit
DecidedSeptember 5, 2007
Docket05-4757
StatusPublished
Cited by85 cases

This text of 499 F.3d 315 (United States v. Battle) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Battle, 499 F.3d 315, 2007 U.S. App. LEXIS 21183, 2007 WL 2484936 (4th Cir. 2007).

Opinions

Affirmed by published opinion. Judge NORTON wrote the opinion, in which Judge NIEMEYER joined. Judge GREGORY wrote a dissenting opinion.

OPINION

NORTON, District Judge:

Appellant entered a guilty plea on a single charge of possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a thorough plea colloquy, the district court stated, “Your plea of guilty is -provisionally accepted pending receipt of a presentence investigation.” J.A. 205 (emphasis added). Appellant subsequently moved to withdraw his guilty plea under Federal Rule of Criminal Procedure 11(d). The district court denied the motion, reasoning that appellant failed to show a “fair and just reason” for withdrawal. . Appellant argues the district court erred because he had an unconditional right to withdraw the plea under Rule 11(d)(1) because the court had not yet accepted the guilty plea. For the reasons set forth below, we affirm the district court’s denial of the motion to withdraw.

Appellant also contends the district court committed a number of errors in imposing a 120-month term of incarceration, a sentence at the bottom of the Guidelines range. Specifically, appellant argues the district court applied a four-level enhancement by finding facts in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), failed to adequately consider the 18 U.S.C. § 3553(a) factors, and miscalculated the base offense level under the United States [318]*318Sentencing Guidelines. We disagree and affirm the sentence imposed.

I.

On September 14, 2004, a federal grand jury indicted appellant on a single charge of possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). J.A. 9. The indictment resulted from appellant’s arrest after law enforcement officers found a handgun in the vehicle he was driving. J.A. 96-99. Appellant attempted to enter a guilty plea on February 10, 2005, but misrepresented the circumstances of his guilt to the court. He first testified that the firearm was not his and that he did not know it was in his car. J.A. 98. Appellant then changed his testimony and stated the firearm was his. J.A. 98-99. Then appellant said the firearm was not his but that he knew the gun was in the car. J.A. 101. Following a brief recess, appellant admitted that he had lied under oath. J.A. 103. The district judge refused to accept the plea because of appellant’s inconsistent statements. J.A. 103-05.

On February 16, 2005, the day trial was scheduled to begin, appellant again stated that he wanted to enter a guilty plea. J.A. 171. The district court conducted a standard plea colloquy. As part of the colloquy, the court found that appellant was competent, was acting voluntarily, appreciated the consequences of pleading guilty, and that there was a factual basis for the plea. J.A. 204-05. At the end of the colloquy, the district judge stated:

Your plea of guilty is provisionally accepted pending receipt of a presentence investigation, and the court will defer final acceptance of the plea agreement and the adjudication of guilt until we’ve all had an opportunity to review that report.

J.A. 205. When the jurors were brought into the courtroom, the district judge informed them that he had “accepted” the defendant’s plea and that their service was no longer needed. J.A. 207.

The district court issued an order pertaining to the guilty plea on February 23, 2005. The order recited the events of the second plea hearing, and noted that the court had “conditionally accepted” appellant’s guilty plea. J.A. 219. In choosing to conditionally accept the plea, the court noted that it was deferring further action pursuant to U.S.S.G. § 6Bl.l(c), which permits a court to accept or reject a plea agreement described in Rule 11(c)(1)(A) or (C), or to defer a decision on the agreement until it has an opportunity to review the presentence report. The district judge concluded the order by stating, “[T]he court adjudges and the defendant now stands provisionally guilty of Count One of the single-count indictment.” J.A. 219.

After reviewing the presentence report, appellant moved to withdraw his guilty plea. As the basis for his motion, appellant claimed he was surprised at the high sentence recommended by the presentence report. J.A. 235-36. In deciding the motion, the district court applied the “fair and just reason” standard for withdrawal provided in Rule 11(d)(2)(B). See J.A. 233, 239-40. The district court denied the motion, concluding that appellant’s reaction to the presentence report was not a fair and just reason for withdrawal. J.A. 238-39.

The presentence report made two recommendations that are particularly relevant to the issues on appeal. First, the report assigned a base offense level of twenty-four under U.S.S.G. § 2K2.1(a)(2) because appellant had two prior controlled-substance felony convictions. Second, the report recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) because appellant previously used a firearm in connection with another felony of[319]*319fense. J.A. 294-95. Appellant objected to both of these recommendations. J.A. 305.

At the outset of the sentencing hearing, the district court stated that “[ejxeept as may be modified by specific rulings made at this hearing, the court adopts as its findings the facts and conclusions contained in the presentence report.” J.A. 241. The district court then heard evidence on whether appellant used a firearm while distributing controlled substances. Jessica Blankenship, an acquaintance of appellant, testified that she purchased crack from appellant once and that she saw her friends purchase crack from him approximately eight or nine times. J.A. 247-48. Blankenship further testified that she saw appellant with a gun every time she or her friends purchased crack from him. J.A. 250. Appellant offered only his own testimony to rebut Blankenship’s testimony. He testified that he hardly knew Blankenship and that he never had a gun in his dealings with her. J.A. 268-64. The court found Blankenship to be more credible than appellant based on appellant’s perjury during his first plea hearing. J.A. 271. Thus, relying on Blankenship’s testimony, the court found that appellant had used a firearm in connection with another felony offense and applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(5). J.A. 271.

The district court also specifically found that the presentence report properly calculated the base offense level under U.S.S.G. § 2K2.1(a)(2). J.A. 273. Before imposing the sentence, the court noted, “[WJhen you pled guilty on February 16, 2005, I deferred final acceptance of your plea agreement, as well as the adjudication of guilt, pending receipt of the presentence report.” J.A. 272.

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Cite This Page — Counsel Stack

Bluebook (online)
499 F.3d 315, 2007 U.S. App. LEXIS 21183, 2007 WL 2484936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-battle-ca4-2007.