United States v. Jennings

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2004
• Docket: 03-4931
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4931

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN HENRY JENNINGS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., Senior District Judge. (CR-03-103)

Submitted: June 14, 2004 Decided: July 29, 2004

Before WIDENER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Christopher J. Moran, Columbia, South Carolina, for Appellant. William Kenneth Witherspoon, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

John Henry Jennings, Jr., appeals his conviction and

sentence, after pleading guilty to distributing and possession with

intent to distribute five grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) (2000) (count one), and

possession of a firearm in furtherance of, and using and carrying

a firearm during and in relation to, a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1) (2000) (count two). The

presentence investigation report (“PSR”) recommended that Jennings

be sentenced as a career offender. After denying Jennings’s motion

to withdraw his guilty plea, the district court adopted the PSR’s

findings and sentenced Jennings to 262 months of imprisonment on

count one and sixty months of imprisonment on count two, to be

served consecutively. Jennings received eight years of supervised

release on count one and five years for count two, to run

concurrently.

Jennings’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there were no

meritorious grounds for appeal but raising three issues: (1)

whether the district court erred in denying Jennings’s motion to

withdraw his guilty plea; (2) whether the district court erred in

denying Jennings’s motion to depart downward based on an overstated

criminal history from his career offender status; and (3) whether

the district court erred in sentencing Jennings as a career

- 2 - offender. Jennings reasserts issues one and three in his pro se

supplemental brief and also claims that the district court erred in

calculating his criminal history points and that the indictment was

invalid.

The district court’s denial of a motion to withdraw a

guilty plea is reviewed for an abuse of discretion. United States

v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does

not have an absolute right to withdraw a guilty plea. United

States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, the

defendant bears the burden of demonstrating that a “fair and just

reason” supports his request to withdraw his plea. Id. Because

Jennings failed to meet this burden, we conclude that the district

court did not abuse its discretion in denying Jennings’s motion to

withdraw his guilty plea. See United States v. Lambey, 974 F.2d

1389 (4th Cir. 1992) (en banc).

Both Jennings and counsel raise the issue of whether the

district court erred in sentencing Jennings as a career offender.

Jennings maintains that his prior state conviction for attempted

escape was not a felony, while counsel maintains that the crime of

attempted escape is not a crime of violence. See U.S. Sentencing

Guidelines Manual § 4B1.1 (2002). The district court’s factual

findings are reviewed for clear error, and its application of the

sentencing guidelines is reviewed de novo. United States v.

Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Because the crime of

- 3 - attempted escape is punishable by imprisonment for a term exceeding

one year and involves conduct that presents a serious potential

risk of physical injury to another, we conclude that the district

court did not err in sentencing Jennings as a career offender. See

S.C. Code Ann. § 24-13-410 (Law. Co-op. 1991); United States v.

Dickerson, 77 F.3d 774 (4th Cir. 1996).

Counsel also raises the issue of whether the district

court erred in denying Jennings’s request for a downward departure

based on an overstated criminal history from his career offender

status. A sentencing court’s decision not to depart is not

reviewable unless the court’s decision is based on a mistaken view

that it lacks authority to do so. United States v. Brock, 108 F.3d

31, 33 (4th Cir. 1997). We dismiss this claim because the district

court’s comments during sentencing reflected that the court

understood its ability to depart downward based on an overstated

criminal history.

Finally, Jennings claims in his pro se supplemental brief

that the district court incorrectly calculated his criminal history

points, the indictment was invalid because it was amended by the

Government without being approved by the grand jury, and the

indictment was never signed by the grand jury foreperson. We need

not review the district court’s calculation of Jennings’s criminal

history points because the district court properly sentenced

Jennings as a career offender. Further, a voluntary guilty plea

- 4 - normally forecloses claims based on non-jurisdictional pre-plea

defects. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973).

In accordance with the requirements of Anders, we have

reviewed the entire record in this case and have found no

meritorious issues for appeal. Accordingly, we deny Jennings’s

motion for appointment of new counsel and affirm Jennings’s

conviction. We also affirm Jennings’s sentence but dismiss the

portion of the appeal that challenges the district court’s decision

not to depart. This court requires that counsel inform his client,

in writing, of his right to petition the Supreme Court of the

United States for further review. If the client 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 the client.

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 PART AND DISMISSED IN PART

- 5 -