United States v. Gerald Roderick Carroll

908 F.2d 340

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 10, 1990
• Docket: 89-2579EM
• Status: Published

Opinions

PER CURIAM.

Gerald Roderick Carroll appeals his sentence imposed by the district court¹ after he pleaded guilty to one count of armed robbery of a federally insured savings and loan institution, in violation of 18 U.S.C. § 2113(a), (d) (Count II), and one count of being armed while committing a crime of violence, in violation of 18 U.S.C. § 924(c) (Count III). In setting Carroll’s base offense level, the district court refused to grant a reduction for acceptance of responsibility pursuant to Sentencing Guideline § 3E1.1. The court’s refusal was based solely on certain statements made by Carroll during the course of his sentencing hearing. We affirm.

At the sentencing hearing, Carroll announced that he wished to withdraw his guilty plea, objecting, in part, that he did not understand at the time he pleaded guilty that his sentences on Counts II and III would run consecutively. Sentencing Transcript at 3-4. Carroll then repeatedly asserted that he did not use a gun during the robbery. Id. at 4-8. The district court refused to allow Carroll to withdraw his guilty plea,² and sentenced him to 106 months imprisonment.³ In so doing, the court refused to grant Carroll a two-level reduction for acceptance of responsibility.⁴

The only issue presented on appeal is whether Carroll’s attempt to withdraw his guilty plea due to a misunderstanding involving legal issues should affect his eligibility for a two-level reduction pursuant to § 3E1.1. We need not reach this issue because Carroll’s attempt to withdraw his guilty plea involved more than a mere legal misunderstanding over the consecutive nature of his sentence. Carroll’s suggestions to the contrary are completely without merit. Use of a weapon is an essential element of the offenses to which he pleaded guilty. His repeated refusals to acknowledge that he used a gun during the course of his crimes demonstrated his refusal to personally accept responsibility for the crimes charged. Therefore, we cannot say that the district court’s refusal to grant the requested reduction is without foundation. United States v. Grimes, 899 F.2d 731, 732 (8th Cir.1990). We affirm.⁵

Finally, we have considered the additional argument made by Carroll in his supplemental pro se brief. He argues that the fruits of his stop, arrest and identification must be suppressed because the police did not have a reasonable suspicion that he was engaged in illegal activity to justify their stop of his car. We have thoroughly reviewed the record and find this argument to be without merit.

1 . The Honorable George F. Gunn, United States District Judge for the Eastern District of Missouri.

2 . Carroll does not allege the district court erred when it refused to permit him to withdraw his guilty plea.

3 . The district court sentenced Carroll to 46 months on Count II and 60 months on Count III. The sentences were ordered to run consecutively.

4 . The district court stated, "I will find against him [on his request for a two-level reduction for] acceptance of responsibility because he is, in open court, not accepting responsibility.” Sentencing Transcript at 8.

5 . We respectfully note that we do not believe it is appropriate to comment on the merits of an issue raised for the first time in the concurrence; namely, whether the district court penalized Carroll for the exercise of his constitutional right to proceed to trial by withdrawing his guilty plea. First, Carroll did not raise this issue before the district court, and as such, we should not consider it. See Molasky v. C.I.R., 897 F.2d 334, 338 (8th Cir.1990) (not address issue raised for first time on appeal when party failed to demonstrate that manifest injustice would result from the court’s refusal to consider it). Second, Carroll did not raise the issue on appeal. "It is well settled in this circuit if an issue is not raised on appeal it will be deemed abandoned.” Borough v. Duluth, Missabe & Iron Range Ry. Co., 762 F.2d 66, 68 n. 1 (8th Cir.1985) (citing Kizzier Chevrolet Co. v. General Motors Corp., 705 F.2d 322, 325 n. 2 (8th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 153, 78 L.Ed.2d 141 (1983)). Finally, the concurrence constitutes an advisory opinion, the effect of which is to prompt Carroll to file for postcon-viction relief by explicitly advising the district court to heed its advice in the event postconviction reliéf is ultimately sought. We do not believe that comments about the outcome of a hypothetical case are appropriate. Cf. Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983).