United States v. Nykeem Odom

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 4, 2023
• Docket: 21-4685
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4685

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NYKEEM TAYQUAN ODOM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:20-cr-00149-D-1)

Submitted: October 13, 2022 Decided: January 4, 2023

Before NIEMEYER and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Helen Celeste Smith, Apex, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

After the defendant Nykeem Odom pleaded guilty to possession of a firearm by a

felon, in violation of 18 U.S.C. § 922(g)(1) and § 924, but before his sentencing, he filed a

motion to withdraw his guilty plea, alleging that his counsel had provided ineffective

assistance and that he was in fact innocent. The district court conducted an evidentiary

hearing and then denied Odom’s motion, making extensive factual findings, including

credibility determinations. At Odom’s sentencing hearing, the court applied two

sentencing enhancements to which Odom objected. The court then sentenced Odom to 96

months’ imprisonment.

On appeal, Odom challenges the district court’s denial of his motion to withdraw

his guilty plea and its application of the two sentencing enhancements. We affirm.

I

After Odom was indicted, the government provided his counsel with an unsolicited

proposed plea agreement offering that it would not press certain sentencing enhancements

in exchange for Odom’s guilty plea, cooperation, and waiver of appeal rights. The

government explained to counsel that it wanted Odom’s testimony to investigate gang

activity, since Odom was a member of the Crips gang. On receiving the proposal, Odom’s

counsel “explained the plea agreement to Odom,” as the district court found, “including

the charge, the elements [of the crime], the maximum penalty, and the plea agreement’s

terms. [Counsel] also explained to Odom that the proposed plea agreement required [him]

to cooperate (i.e., ‘snitch’).” After counsel explained to Odom the other terms of the

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agreement and reviewed with him the sentencing process and possibilities, Odom told his

counsel, as the court found, that “he did not want to snitch, give up his appellate rights, or

plead guilty pursuant to the plea agreement. Rather, Odom decided to plead guilty without

a plea agreement.” Counsel so advised the government, telling the Assistant U.S. Attorney

that Odom had rejected the proposed plea agreement.

On September 18, 2020, Odom’s counsel received a telephone call from a member

of Odom’s family who stated that the owner of the firearm found in the vehicle Odom was

driving had sent an affidavit to counsel’s office, stating that she owned the gun; that she

mistakenly left the gun in the car; that she mistakenly forgot to retrieve the gun; that Odom

was driving his mother’s car on July 9, 2019; and that Odom had no knowledge that the

gun was in the car. When, however, counsel asked the family member for the affidavit,

none was provided then or at any time while he was representing Odom.

Three days after this phone call, counsel met with Odom to discuss the new

information. As the district court found about this meeting, counsel told Odom that “gun

ownership was not a required element of the charged offense, but if Odom had no

knowledge of the gun, then that would be a defense to the section 922(g)(1) charge in the

indictment because the United States had to prove that Odom knowingly possessed the

gun.” Counsel then invited Odom to think about whether he wanted to plead not guilty and

allow counsel time to investigate the information. Odom, however, responded “no” and

told counsel that he wanted to proceed with the guilty plea at the arraignment scheduled

for September 24, 2020. As the district court found, “[a]t no time during this conversation

or at any other time during the attorney-client relationship did Odom ever tell [counsel]

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that he was innocent of the section 922(g) charge in the indictment (i.e., that he did not

knowingly possess the firearm in the indictment or that he did not know about the firearm

in the car). During the attorney-client relationship, Odom never provided [counsel] with

any evidence of his innocence.”

Odom’s arraignment took place on September 24, 2020, and Odom, following a

thorough plea colloquy, pleaded guilty to the firearms charge. During the colloquy, the

presiding judge advised Odom of the elements of the offense and what the government had

to prove, stating:

Mr. Odom, I want to review the elements of the offense to which it’s anticipated you’ll plead guilty. Again, that’s possession of a firearm by a felon. The elements of that offense are that in your case, on July 9, 2019, . . . you knowingly possessed a firearm. At the time you possessed the firearm you knew you had been convicted of a crime punishable by a term of imprisonment exceeding one year and that the possession of the firearm was in or affecting commerce. Mr. Odom, do you understand the elements of that offense?

(Emphasis added). Odom replied that he did. Thereafter, the government proffered the

facts of the offense conduct, stating:

[O]n July the 9th of 2019, the Raleigh Police Department Officer Quesada was conducting proactive patrol in the area of Millbrook and Six Forks Road here in Raleigh, North Carolina, located here in the Eastern District of North Carolina.

While on patrol, Officer Quesada noticed a car, which was being driven by the Defendant, which he visually estimated to be speeding. He ran the license plate for the car, and it came back to an address associated with Defendant. He was able to see that the Defendant was driving the car and was able to run the Defendant’s record and realized that there was also an outstanding warrant out of Nash County for this particular Defendant. He ended up activating his blue lights and initiated a traffic stop for the speeding violation.

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Mr. Odom stopped his car near Cedarhurst Drive and Indian Trail Drive in Raleigh. As Officer Quesada was approaching the vehicle, he identified himself. He was also in a marked Raleigh PD unit as well. He went up to the vehicle and asked Mr. Odom to step out of the car. The Defendant questioned him as to why he was asking him to step out of the car. He then was able to start smelling marijuana. He saw the Defendant reaching for the gearshift, so Officer Quesada then opened the door. The Defendant then kicked the officer in the chest in order to get him away from the vehicle and then fled the scene.

Pursuant to [a Raleigh Police Department] policy, Officer Quesada did not chase after Mr. Odom given that he was in a neighborhood when this case began or when the car started fleeing. The car ended up wrecking at the intersection of Orleans Place and Quail Hollow Drive, after Mr. Odom wrecked his car into another vehicle. He then fled the scene. Witnesses told the police that they had observed the Defendant flee the car.

They then, in plain view, noticed that there was a bottle of tequila that was open in the vehicle. Also smelling marijuana, they did a search of the car and located a small bag of marijuana in the center console as well as a Taurus TH40 semiautomatic pistol that was in the side well of the car by the pedals.

The recitation concluded with the proffer that Odom had previously been convicted of a

felony and that the pistol seized from the vehicle had traveled in interstate commerce.

Odom was advised that if he pleaded guilty and the court accepted his guilty plea, he would

“not be able to withdraw it at a later date.” After Odom expressed his understanding of

that fact, he pleaded guilty. The court followed up, “Did you, in fact, commit the offense

charged in the count?” Odom replied, “Yes, sir.” And the court then posed one further

question, “And are you pleading guilty today of your own free will because you are, in fact,

guilty?” Odom responded, “Yes, sir.” The court thereafter accepted Odom’s plea as freely

and voluntarily given.

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During the period thereafter, after a draft presentence report had been prepared but

before sentencing, Odom wrote the district court that he was dissatisfied with his counsel

and wanted new counsel, complaining about the level of communication with counsel and

counsel’s inability to “find a common ground and/or solution to my concerns.” His counsel

promptly thereafter filed a motion to withdraw, stating that “a functional and effective

attorney-client relationship is no longer possible.” The court granted the motion, and new

counsel promptly entered her appearance on behalf of Odom.

Then, Odom filed a motion to withdraw his guilty plea, based on (1) the alleged

deficient level of communication between former counsel and Odom and (2) Odom’s

purported innocence based on the information received from a family member that the

firearm in Odom’s vehicle belonged to someone else and was inadvertently left in the

vehicle, thus unwittingly implicating Odom. He claimed in his motion that former counsel

(1) failed to fully explain the government’s proposed plea agreement; (2) failed to identify

and explain potential sentencing enhancements; and (3) failed to pursue the affidavit

presented by the owner of the firearm, “which completely disproved an essential element

of the offense, i.e., the knowing possession of a firearm.” Attached to the motion was an

affidavit from Odom in which he supported the claims made in the motion. He included

the statement, “I did not know the gun was in the car.”

The district court conducted an evidentiary hearing on Odom’s motion to withdraw

his guilty plea on July 23, 2021, following which it issued a thorough 28-page opinion and

order denying Odom’s motion to withdraw. In its opinion, the court properly recognized

the standard for withdrawal of a guilty plea — that the defendant must “show a fair and

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just reason for requesting the withdrawal.” (Quoting Fed. R. Crim. P. 11(d)(2)(B)). The

court also appropriately recognized that it should consider six factors in determining

whether to grant such a motion, as identified in United States v. Nicholson, 676 F.3d 376,

384 (4th Cir. 2012), and United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). It then

addressed those factors in light of the facts. First, it found that Odom had “not presented

credible evidence that his guilty plea was not knowing or voluntary.” Second, it found that

“Odom ha[d] not credibly asserted his legal innocence.” With regard to that factor, the

court conducted an extensive review of the evidence, detailing each step and fact that

supported Odom’s knowledge of the presence of the gun and ultimately concluding,

“Odom’s claim in his declaration that he told [counsel] ‘that I did not know the gun was in

my mother’s car on July 9, 2019’ is untrue and perjurious.” In addition, the court found

that the information submitted by a friend of Odom’s family did “not constitute credible

evidence of Nykeem Odom’s innocence,” finding numerous inconsistencies. Third, the

court concluded that the delay in filing the motion for withdrawal of his plea was “long”

and did not “favor permitting withdrawal.” Fourth, the court found that Odom had “the

close assistance of competent counsel” in entering his guilty plea. On this finding, the

court again detailed extensively the relationship between Odom and his counsel and the

advice counsel had provided over the period before Odom entered his guilty plea. Fifth,

the court concluded that the withdrawal of the guilty plea would “prejudice the United

States.” And sixth and finally, the court noted that “withdrawal will inconvenience the

court and waste judicial resources.”

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We have carefully reviewed the arguments of counsel and the record in this case,

and, substantially for the reasons given by the district court, see United States v. Odom,

5:20-cr-149-D (E.D.N.C. Aug. 23, 2021), we affirm the district court’s denial of Odom’s

motion to withdraw his guilty plea.

II

Odom also claims that the government violated his due process rights by failing to

provide him with exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83

(1963), that the evidence would have assisted him in making his decision whether to plead

guilty. He did not, however, make this constitutional argument to the court in his motion

to withdraw his guilty plea or at the hearing. Rather, he made it for the first time at

sentencing, interposing it as an objection. The district court said that it did not see the

argument’s connection with the motion to withdraw and saw no basis to invalidate Odom’s

guilty plea based on the alleged Brady violation. We affirm.

The facts relevant to the withdrawal of the plea agreement related to insufficient

communication about the government’s proposed plea agreement and the failure to

investigate further the information received from the family about the gun ownership.

Those facts and the issues relating to them were fully aired in briefing and at the evidentiary

hearing, and none were supported by the evidence not yet seen by Odom when he pleaded

guilty. And Odom has failed to demonstrate that the government’s alleged discovery

violations suggest in any way that his guilty plea was entered unknowingly.

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III

Finally, Odom challenges the district court’s application of sentencing

enhancements under U.S.S.G. § 3A1.2(c)(1) (providing enhancement for assaulting a law

enforcement officer during the commission of the offense) and § 3C1.1 (providing

enhancement for obstruction of justice by providing materially false information to a

judge). Odom claims that the district court’s findings in applying the § 3A1.2(c)(1)

enhancement represented an overstatement of his conduct, arguing that the physical contact

with police officers, as shown in the video of the event, was hardly an assault and was

incidental and minor. And on the obstruction of justice enhancement, he contends that his

statement in his affidavit was not false, was not material, was not made to willfully obstruct

justice, and was taken by the district court out of context.

The district court spelled out in detail the Guidelines requirements for both

enhancements, and it made detailed findings of fact in connection with each. As to the

conduct supporting the § 3A1.2(c)(1) enhancement, the court summarized:

When the officer opened the door to get you out of the vehicle, you were reaching for the gear shifter and attempting to flee. There was a physical altercation where you assaulted the officer, and the officer did sustain lacerations on two of his fingers. The officer deployed pepper spray. You shifted the vehicle into gear and fled at a high rate of speed. You then crashed the car into a parked, unoccupied vehicle, but you certainly had extremely endangered the officer, as well as those in the subdivision.

And as to the conduct supporting the § 3C1.1 enhancement, the court relied on its earlier

finding that the statement Odom made was “untrue and perjurious.” The court explained

at the sentencing hearing that “[counsel] testified that Odom never told him that [he did not

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know the gun was in the car]; and that if he had made such a statement, he would have

advised Odom to plead not guilty.” The court further noted that it had “found [counsel] to

be credible . . . and Odom’s declaration to not be credible; i.e., patently false.” The court

went on to find Odom’s false statement was material and willful, explaining why.

Having reviewed the arguments of counsel and the record in great detail, we find no

error and affirm the sentence.

* * *

Accordingly, the judgment of the district court is

AFFIRMED.