UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 94-30661 Summary Calendar _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee, versus
KEVIN MYLES aka Kevin M. Myles and WALTER TURNER
Defendants-Appellants.
________________________________________________
Appeal from the United States District Court for the Eastern District of Louisiana
(CR-94-97-F) ________________________________________________
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 95-30101 Summary Calendar _____________________
DANA HICKS,
Defendant-Appellant. ________________________________________________
Appeal from the United States District Court for the Eastern District of Louisiana
(CR-94-97) ________________________________________________ December 22, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
Kevin Myles and Walter Turner were convicted for conspiracy to
distribute cocaine base and possession of cocaine base with intent
to distribute. In addition, Myles was convicted for use of a
weapon during a drug trafficking offense. Both appeal their
convictions. Dana Hicks was indicted with Walter Turner and Kevin
Myles; he appeals the denial of his motion to withdraw his guilty
plea and his sentence. We AFFIRM.
I.
Agents of the Bureau of Alcohol, Tobacco and Firearms and the
Drug Enforcement Administration, working with the New Orleans
Police Department, obtained a federal search warrant for 3107
Marais Street in New Orleans. When the warrant was executed,
Turner and Hicks were present; Turner told agents that he owned the
house, that he occupied the second bedroom, and that Myles occupied
another bedroom. Agents seized cocaine, numerous firearms,
ammunition, United States currency, and narcotics-related items.
Turner was arrested at the time of the search.
1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published.
- 2 - Myles was arrested several days later. He gave a recorded
confession to DEA agent Jim Langnes and ATF agent Charles Hustmyre
after they gave him Miranda warnings.
II.
A.
Myles asserts that the district court did not comply with 18
U.S.C. § 3501, which governs the procedure to be used when a
defendant challenges the voluntariness of a confession. The
Government introduced his recorded confession to Agent Hustmyre
during its direct examination of him. Myles objected, stating that
"the basis for the objection is that prior statements, prior
testimony given by Agent Langnes, indicated that [Myles] did not
give that statement free and voluntary and that he was, in a sense,
given a promise of leniency for making a statement at the time".
The district court overruled the objection, stating that it
was not supported by the record. The Government then questioned
Agent Hustmyre about whether threats were made to Myles, or any
promises made to him regarding his cooperation. Agent Hustmyre
responded that Myles was told that his cooperation would be brought
to the attention of the United States Attorney's office. The court
stated that, "in view of [Myles'] objection", Myles would be given
the opportunity to cross-examine Agent Hustmyre for any
inconsistency between his and Agent Langnes' testimony.
Myles elicited the following on cross-examination. Myles was
read his constitutional rights before any statement was made; Myles
- 3 - was told that his cooperation would be brought to the attention of
the United States Attorney, but no promise was made that the court
would be made aware of the cooperation; and Agent Langnes was
present when Myles was interviewed, but he made no promises to
Myles.
Myles reiterated his objection to the admission of the
confession, at which time the court conducted a bench conference.
At the conference, the court asked Myles' lawyer why he had not
filed a motion to suppress the confession. Counsel responded that
his client had only recently informed him of the statement. Myles
asserted that Agent Langnes had testified that he told Myles that
if he were to cooperate, it would be brought to the court's
attention,2 and that he believed that he would receive favorable
treatment by the court. The court again overruled the objection,
and the recorded confession was played for the jury.
Section 3501(a) provides that:
... [A confession] shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made ... [he] shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.
18 U.S.C. § 3501(a). Myles contends that the court determined the
issue of voluntariness partly in front of the jury, failed to make
2 Agent Langnes testified that when Myles was arrested he was advised of his Miranda rights and told that "if he were to cooperate with the [G]overnment his cooperation would be made known to the judge before he was sentenced".
- 4 - specific findings on the voluntariness of the confession, and,
after finding that the confession was voluntary, failed to give the
required jury instruction. The Government counters that "no
genuine issue of voluntariness existed", inasmuch as trial
testimony established that Myles was advised of his rights before
confessing and had agreed to be interviewed.
This court held in United States v. Iwegbu, 6 F.3d 272, 274
(5th Cir. 1993), that § 3501 "is written in mandatory language, and
therefore once an issue arises as to the voluntariness of a
confession, the district court should conduct a voluntariness
hearing and give the instruction required by the statute".
Iwegbu's counsel had not moved to suppress, did not request a
hearing or instruction, and did not object to testimony regarding
the controverted confession. Id. at 274. Our court explained that
"even when no request is made for the hearing and instruction, the
district court should comply with the statute sua sponte when the
evidence clearly raises a question of voluntariness". Id. Unlike
Iwegbu, Myles objected to the admission of the confession on
voluntariness grounds, thereby clearly raising the issue.
Iwegbu held that, when voluntariness was placed in issue in
district court, this court asks whether that court's failure to
conduct the hearing and give the instruction sua sponte amounts to
reversible error and that, if no requests or objections were made
in district court regarding the confession, then the errors
asserted on appeal must amount to plain error. Iwegbu, 6 F.3d at
- 5 - 274. No request was made by Myles for a hearing or instruction
pursuant to § 3501.3
Under Fed. R. Crim. P. 52(b), this court may correct forfeited
errors only when the appellant shows the following factors: (1)
there is an error, (2) that is clear or obvious, and (3) that
affects his substantial rights. United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994)(en banc)(citing Olano, 113 S. Ct.
at 1776-79), cert. denied, 115 S. Ct. 1266 (1995).
Plain error is one that is "clear or obvious, and, at a
minimum, contemplates an error which was clear under current law at
the time of trial". Calverley, 37 F.3d at 162-63 (internal
quotation and citation omitted). "[I]n most cases, the affecting
of substantial rights requires that the error be prejudicial; it
must affect the outcome of the proceeding." Id. at 164.
Even when the appellant carries his burden, Rule 52(b) is
permissive, not mandatory. If the forfeited error is plain and
affects substantial rights, this court has authority to correct the
error, but is not required to do so; and this discretion is narrow.
Rodriguez, 15 F.3d at 416-17. We exercise it only when errors
"seriously affect the fairness, integrity, or public reputation of
judicial proceedings". Calverly, 37 F.2d at 164.
The district court erred when it did not follow the mandate of
§ 3501 to hold a hearing outside the presence of the jury and when
it did not instruct the jury on the weight to be given the
3 Myles concedes that no jury instruction was requested, but asserts that the failure constituted plain error.
- 6 - confession. Myles, however, does not meet his burden of showing
that the error "had an unfair prejudicial impact on the jury's
deliberations". Iwegbu, 6 F.3d at 275 (citation and internal
quotation marks omitted).
Myles' only claim that the confession was not voluntary is
that he made the confession "as a direct result of the agents
promising to bring his cooperation to the attention of the United
States Attorney's Office". This reason does not implicate any of
the factors § 3501(b) discusses as circumstances the district court
should consider when determining whether a confession was
voluntary.4 Nor does Myles show that such a belief rendered the
confession involuntary. Thus, even if the district court had
conducted a voluntariness hearing, it would have had to conclude
that the confession was free and voluntary. Consequently, the
hearing would not have affected the evidence presented to the jury.
See Iwegbu, 6 F.3d at 275. Because Myles has not demonstrated any
prejudice that resulted from the district court's failure to
4 Section 3501(b) provides that when determining the voluntariness of a confession, the trial judge should consider "all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether ... such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether ... such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether ... such defendant was without the assistance of counsel when questioned and when giving such a confession".
- 7 - conduct a voluntariness hearing, the error cannot be considered one
that affects a substantial right.
Although the court did not give a specific instruction on the
weight the jury was to give to the confession, the court did give
a general instruction on the credibility of witnesses. Such a
general instruction limits the possible prejudice that might result
from the failure to give a voluntariness instruction. Iwegbu, 6
F.3d at 275-76 & n.4.5 Moreover, in closing argument, Myles'
counsel referenced the confession, but neglected to make use of the
opportunity to argue that it was involuntary, further undermining
Myles' claim on appeal that the failure to instruct the jury on
voluntariness constituted the type of serious error required to
satisfy our plain error standard. Considering both the instruction
given and his attorney's choice not to argue involuntariness to the
jury, we cannot find that the failure to explicitly instruct on
voluntariness affected any substantial right of the defendant.
In sum, there was no plain error.
B.
Turner maintains that the evidence was insufficient to support
his conviction for conspiring to possess with intent to distribute
cocaine base and for possession with intent to distribute. He
acknowledges that he did not move for judgment of acquittal at the
5 The general instruction on the credibility of witnesses found by the Iwegbu court to limit possible prejudice resulting from the district court's failure to give a voluntariness instruction contains the same language as the district court's general charge on the credibility of witnesses in the instant case.
- 8 - close of the Government's case, and that no such motions were made
at the close of all the evidence.
Absent a motion for acquittal, we review the sufficiency of
the evidence only for whether affirmance would result in manifest
injustice. United States v. Singer, 970 F.2d 1414, 1418 (5th Cir.
1992). Under this standard, Turner's conviction may be reversed
only if the record is devoid of evidence pointing to guilt, or if
the evidence on a key element of the offense was so tenuous that a
conviction would be shocking. See United States v. Sparks, 2 F.3d
574, 585 (5th Cir. 1993) (quoting United States v. Galvan, 949 F.2d
777, 782-83 (5th Cir. 1991), cert. denied, __ U.S. __, 114 S. Ct.
720 (1994).
To prove the conspiracy charge, the Government was required to
establish beyond a reasonable doubt (1) that a conspiracy existed,
i.e., that Turner and at least one other person agreed to violate
the narcotics laws; (2) that Turner knew of the conspiracy; and (3)
that he voluntarily participated in it. E.g., United States v.
Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), cert. denied, 114 S.
Ct. 2150 (1994). And, to establish a violation of 21 U.S.C. §
841(a)(1) for possession with intent to distribute cocaine, the
Government must show knowing possession with intent to distribute.
United States v. Munoz, 957 F.2d 171, 174 (5th Cir.), cert. denied,
113 S. Ct. 332 (1992).
As the Government contends, Turner's rendition of the facts
shows that the record is not devoid of evidence of his guilt.
Turner states that Government witnesses testified that a search of
- 9 - Myles' bedroom in Turner's house yielded "fifty grams of cocaine
base found in three different locations, an automatic pistol, an
assault rifle, an AK 47, over $5000 in United States currency in a
box, $700 in United States currency in a jacket, hundreds of rounds
of ammunition, a digital scale, four pagers, and a cellular phone".
A search of his bedroom revealed a small amount of cocaine base in
the pocket of a jacket, $610 which drew a reaction from a drug-
sniffing dog, and two boxes of ammunition. From this evidence
alone, a jury could have inferred that Turner and Myles conspired
to possess and distribute cocaine base, and that Turner possessed
it.
C.
Dana Hicks pleaded guilty to possession with the intent to
distribute cocaine base. The presentence report (PSR) increased
his base offense level for relevant conduct. At his sentencing
hearing, Hicks moved to withdraw his guilty plea, on the basis that
he had not thought that he would be sentenced for relevant conduct.
The district court denied the motion, and sentenced him to 236
months of imprisonment and a five-year term of supervised release.
1.
Hicks asserts that the district court erred when it denied his
motion to withdraw his guilty plea. He testified at the sentencing
hearing that he wished to withdraw his plea because the PSR
included relevant conduct, i.e. conspiracy to possess cocaine, when
calculating the recommended sentence. Hicks' counsel told the
court that, prior to Hicks' plea, counsel advised Hicks that
- 10 - relevant conduct would be considered by the court in sentencing;
Hicks acknowledged this on cross-examination.
This court reviews the denial of a motion to withdraw a guilty
plea only for abuse of discretion. United States v. Bounds, 943
F.2d 541, 543 (5th Cir. 1991), cert. denied, __ U.S. __, 114 S. Ct.
135 (1993). In United States v. Carr, 740 F.2d 339, 343-44 (5th
Cir. 1984), cert. denied, 471 U.S. 1004 (1985), our court
enumerated seven factors for district courts to consider when
ruling on such a motion: (1) whether the defendant has asserted
his innocence; (2) whether withdrawal would prejudice the
Government; (3) whether the defendant delayed in filing the motion,
and if so, the reason for the delay; (4) whether withdrawal would
substantially inconvenience the court; (5) whether adequate
assistance of counsel was available to the defendant; (6) whether
the plea was knowing and voluntary; and (7) whether withdrawal
would waste judicial resources.
Hicks raises two of the Carr factors on appeal. He urges that
his guilty plea was not knowing and voluntary because he did not
think that the court would consider relevant conduct when
sentencing him. But, his above referenced testimony contradicts
this. Moreover, receiving a sentence different from that hoped for
is not a proper basis for the withdrawal of a guilty plea. United
States v. Rodriguez, 62 F.3d 723, 725 (5th Cir. 1995).
Hicks contends that the Government failed to prove when he was
informed of the relevant conduct, and, therefore, the district
court was unable to evaluate properly whether his motion was
- 11 - unnecessarily or intentionally delayed. The Government, however,
does not bear the burden of proof on this issue. See United States
v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). Additionally, the
PSR, dated September 9, 1994, referenced relevant conduct, but
Hicks made no objection to the reference. Two revisions to the PSR
followed on October 24, 1994, and January 19, 1995, also
referencing relevant conduct.6 Again, Hicks made no objections to
the inclusion of relevant conduct. His first objection to the
inclusion of relevant conduct was just before sentencing on January
25, 1995; and Hicks offered no excuse for the delay.
Turning to the remaining Carr factors, Hicks does not assert
his innocence. The Government would undoubtedly be prejudiced by
bringing the case to trial, inasmuch as the confidential informant
in the case has since been killed. As noted, counsel informed the
court, and Hicks testified, that counsel had apprised Hicks of the
use of relevant conduct in reaching a sentence. Moreover, Hicks
testified that he was satisfied with counsel's representation.
Last, in that the case had already proceeded to the sentencing
hearing when Hicks brought his motion, a trial would inconvenience
the court and waste judicial resources. In sum, the district court
did not abuse its discretion when it denied Hicks' motion to
withdraw his guilty plea.
2.
6 The revisions to the PSR are not part of the record, but were discussed by the district court at the sentencing hearing.
- 12 - Hicks contests the court's findings regarding the amount of
drugs used to calculate his sentence. The PSR, prepared September
9, 1994, applied U.S.S.G. § 1B1.3(a)(1)(A), which governs relevant
conduct, to determine the total amount of drugs used to determine
the base offense level.
After hearing testimony relative to Hicks' motion to withdraw
and denying it, the court questioned whether an objection regarding
the amount of drugs had been properly made, because Hicks' counsel
had not objected to a revised PSR. When asked whether he wished to
present any argument, Hicks' counsel stated that he did not view
the revised PSR as different from the first PSR. Counsel made no
argument regarding the amount of drugs determination.
The district court explained that it denied the motion to
withdraw because Hicks waived his right to object to the amount of
drugs used, by failing to object to the third revised PSR. Even
though the court found the objection was waived, the court also
held that Hicks' objection was meritless.
The court also read from a post-arrest statement given by
Myles. In that statement, Myles told agents for the ATF and the DEA
that Hicks had been supplying him with one to two ounces of crack
cocaine per week for six months prior to Myles' arrest.
On appeal, Hicks contends that when the court addressed the
merits of the number of drug transactions he had with Myles, it
acknowledged that the issue was disputed. He asserts that the
court was then bound to conduct an evidentiary hearing to determine
the reliability of the evidence supporting the findings. According
- 13 - to Hicks, Myles was not reliable, and the court should have called
on the probation officer and the prosecutor to produce any evidence
to corroborate his statement.
The district court's findings of fact for sentencing must be
accepted by this court unless they are clearly erroneous. E.g.,
United States v. Soliman, 954 F.2d 1012, 1014 (5th Cir. 1992). A
factual finding is not clearly erroneous if it is plausible in
light of the entire record. E.g., United States v. Sanders, 942
F.2d 894, 897 (5th Cir. 1991). And, the sentencing court may
consider any evidence relevant to sentencing which has sufficient
indicia of reliability to support its probable accuracy. See §
6A1.3(a); United States v. Sherbak, 950 F.2d 1095, 1100 (5th Cir.
1992). "The defendant bears the burden of demonstrating that
information the district court relied on in sentencing is
materially untrue." United States v. Vela, 927 F.2d 197, 201 (5th
Cir.), cert. denied, 502 U.S. 875 (1991) (internal quotations and
citation omitted). The court must resolve specifically disputed
factual issues if it intends to use the facts as a basis for its
sentence. Fed. R. Crim. P. 32(c)(3)(D).
The record does not support Hicks' claim that the relevant
conduct issue was specifically disputed. Moreover, Hicks has not
demonstrated that the information the district court relied on was
materially untrue, inasmuch as he merely criticizes Myles statement
and presents no evidence to contradict it. Accordingly, he has
failed to establish clear error.
III.
- 14 - For the reasons discussed above, the judgments are
AFFIRMED.
- 15 -