United States v. McMillon

89 F. App'x 561
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 3, 2004
DocketNo. 01-3982
StatusPublished

This text of 89 F. App'x 561 (United States v. McMillon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. McMillon, 89 F. App'x 561 (6th Cir. 2004).

Opinion

ORDER

Charles E. McMillon, Jr., appeals his judgment of conviction and sentence. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

McMillon pleaded guilty to armed bank robbery in violation of 18 U.S.C. §§ 2113(a)(d) and 2. He also pleaded guilty to brandishing a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(l)(A)(ii) and 2. The district court sentenced McMillon to 154 months of imprisonment and 4 years of supervised release. The district court also ordered McMillon to pay $11,586.00 in restitution.

On appeal, McMillon’s counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). McMillon has responded to his counsel’s motion [563]*563to withdraw. In that response, McMillon claims that trial and appellate counsel rendered ineffective assistance.

Upon review, we hereby grant counsel’s motion to withdraw as it reflects that counsel has reviewed the entire record and proceedings and concluded that no grounds for appeal can be sustained. Although believing the appeal to be without merit, counsel submits the following issues for review: 1) whether trial counsel rendered ineffective assistance so as to render McMillon’s guilty plea involuntary; 2) whether the district court erred in finding a sufficient factual predicate to accept McMillon’s guilty plea to brandishing a firearm during a crime of violence; and 3) whether McMillon was denied equal protection of the law by receiving a greater sentence than his co-defendant.

To the extent that McMillon might wish to assert an ineffective assistance of counsel claim, that claim is not reviewable in this proceeding. Generally, ineffective assistance of counsel claims are not cognizable in a direct criminal appeal because the record is inadequate to permit review, and hence they are more properly raised in a motion to vacate under 28 U.S.C. § 2255. United States v. Shabazz, 263 F.3d 603, 612 (6th Cir.2001); United States v. Neuhausser, 241 F.3d 460, 474 (6th Cir. 2001). The customary procedure is to permit the defendant to raise his ineffectiveness of counsel claim in a proper post-conviction proceeding under 28 U.S.C. § 2255, where, if necessary, additional evidence, including an evidentiary hearing, may be permitted. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003); United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir.1996). There exists no justification for departing from the customary procedure in this case.

Our independent review of the record reveals that McMillon entered into a valid plea agreement. A plea is valid if it is entered knowingly, voluntarily, and intelligently, as determined under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record should reflect a full understanding of the direct consequences so that the plea represents a voluntary and intelligent choice among the alternatives. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

The district court, by complying with the requirements of Fed.R.Crim.P. 11, properly determined that McMillon knowingly and voluntarily entered his guilty plea. Rule 11 ensures that a defendant pleading guilty understands his applicable constitutional rights, that his plea of guilty is voluntary with a full understanding of the nature of the crime charged and the consequences of his guilty plea, and that a factual basis exists for the crime to which the plea is being offered. United States v. Goldberg, 862 F.2d 101, 106 (6th Cir.1988).

At the plea hearing, the district court very carefully reviewed with McMillon the provisions of the plea agreement, the rights he was waiving, and the maximum penalties he faced under the applicable statute. The district court read the charges and explained the consequences of McMillon’s plea in terms of the possible length of sentence. McMillon told the district court that he understood the charges and the consequences of his plea. McMillon stated that he understood the rights he was waiving and acknowledged his guilt by admitting under oath the facts establishing the essential elements of the offenses. Thus, the court met the requirements of Fed.R.Crim.P. 11. Consequently, the record reveals that McMillon knowingly, intelligently, and voluntarily pleaded guilty.

[564]*564A voluntary and unconditional guilty plea waives all non-jurisdictional defects in the proceedings. United States v. Cottage, 307 F.3d 494, 499 (6th Cir.2002); United States v. Ormsby, 252 F.3d 844, 848 (6th Cir.2001); see also Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (holding that a defendant who has pleaded guilty waives his right to appeal constitutional violations that occurred prior to the guilty plea). Thus, because of the conclusion in the immediately preceding paragraph, we hold that McMillon’s “essential element” and “equal protection” claims are waived.

In any event, McMillon’s “essential element” claim is meritless. McMillon contends that the district court erred in finding a sufficient factual predicate to accept McMillon’s guilty plea to brandishing a firearm during a crime of violence because he did not have a firearm when he and his co-defendant robbed the bank.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
Brady v. United States
397 U.S. 742 (Supreme Court, 1970)
North Carolina v. Alford
400 U.S. 25 (Supreme Court, 1970)
Tollett v. Henderson
411 U.S. 258 (Supreme Court, 1973)
Massaro v. United States
538 U.S. 500 (Supreme Court, 2003)
United States v. Monroe Clinton Maples
501 F.2d 985 (Fourth Circuit, 1974)
United States v. Peter R. Barbara
683 F.2d 164 (Sixth Circuit, 1982)
United States v. Marvin Goldberg
862 F.2d 101 (Sixth Circuit, 1988)
United States v. Vincent Webber
208 F.3d 545 (Sixth Circuit, 2000)
United States v. Michael Bandy
239 F.3d 802 (Sixth Circuit, 2001)
United States v. Larry Arthur Ormsby
252 F.3d 844 (Sixth Circuit, 2001)
United States v. Khalid Hassan Shabazz
263 F.3d 603 (Sixth Circuit, 2001)
United States v. George J. Cottage
307 F.3d 494 (Sixth Circuit, 2002)

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Bluebook (online)
89 F. App'x 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcmillon-ca6-2004.