United States v. Fielding Bolton, III

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 9, 2019
• Docket: 18-4916
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4916

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FIELDING LANIER BOLTON, III,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:17-cr-00150-MOC-WCM-1)

Submitted: June 27, 2019 Decided: July 9, 2019

Before WILKINSON and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Theadore James Besen, TED J. BESEN ATTORNEY AT LAW, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Fielding Lanier Bolton, III, pled guilty, pursuant to a written plea agreement, to

one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)

(2012), and was sentenced to 60 months’ imprisonment. On appeal, counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no

meritorious grounds for appeal but questioning: (1) whether Bolton’s plea was knowing

and voluntary, and (2) whether Bolton received effective assistance of counsel. Although

advised of his right to file a pro se supplemental brief, Bolton has not done so. We

affirm.

Because Bolton did not move to withdraw his guilty plea, we review the adequacy

of the Rule 11 proceeding for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th

Cir. 2014). To prevail under this standard, Bolton “must demonstrate not only that the

district court plainly erred, but also that this error affected [his] substantial rights.” Id. at

816. A defendant who pleads guilty establishes that an error affected his substantial

rights by demonstrating a reasonable probability that he would not have pled guilty but

for the error. United States v. Davila, 569 U.S. 597, 608 (2013).

Before accepting a guilty plea, the district court must conduct a plea colloquy in

which it informs the defendant of, and determines he understands, the rights he is

relinquishing by pleading guilty, the charge to which he is pleading, and the maximum

and mandatory minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United States v.

DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the plea

was voluntary and not the result of threats, force, or promises not contained in the plea

2 agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual basis for the plea,” Fed.

R. Crim. P. 11(b)(3). Any variance from the requirements of Rule 11 “is harmless error

if it does not affect substantial rights.” Fed. R. Crim. P. 11(h). We have reviewed the

record included on appeal and find that the district court committed no error, let alone

plain error, in accepting Bolton’s guilty plea.

Next, counsel suggests that Bolton received constitutionally ineffective assistance

of counsel. Unless the record conclusively establishes that counsel rendered ineffective

assistance, however, such claims are not cognizable on direct appeal. United States v.

Faulls, 821 F.3d 502, 507 (4th Cir. 2016). Because the record does not conclusively

establish that counsel rendered ineffective assistance, we decline to address this claim on

direct appeal. Bolton’s argument is more appropriately raised, if at all, in a 28 U.S.C.

§ 2255 (2012) motion. See United States v. Baldovinos, 434 F.3d 233, 239 & n.4 (4th

Cir. 2006). We express no opinion on the merits of Bolton’s ineffective assistance of

counsel claim.

In accordance with Anders, we have reviewed the entire record and have found no

meritorious issues for appeal. We therefore affirm the district court’s judgment. This

court requires that counsel inform Bolton, in writing, of the right to petition the Supreme

Court of the United States for further review. If Bolton requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation. Counsel’s motion must state that a

copy thereof was served on Bolton. We dispense with oral argument because the facts

3 and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED