United States v. Thaddeus Lavette Bonds

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 16, 2018
• Docket: 16-17043
• Status: Unpublished

Opinion

Case: 16-17043 Date Filed: 10/16/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17043 Non-Argument Calendar ________________________

D.C. Docket No. 5:15-cr-00003-LJA-CHW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THADDEUS LAVETTE BONDS, a.k.a. Stupid,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(October 16, 2018)

Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM: Case: 16-17043 Date Filed: 10/16/2018 Page: 2 of 3

Thaddeus Bonds appeals his sentence of 168 months of imprisonment and

his conviction that was entered on his plea of guilty to conspiring to possess with

intent to distribute cocaine. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. Bonds

challenges the enhancement of his sentence for his leadership role and the

reasonableness of his sentence, but we dismissed those issues in an earlier order

based on the appeal waiver in Bonds’s plea agreement. Bonds also challenges the

denial of his pro se motion for a new trial, in which he argued that his plea of

guilty was not knowingly and voluntarily entered and that his trial counsel was

ineffective. We affirm.

We review the denial of a motion for a new trial for abuse of discretion.

United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). “The abuse of

discretion review requires us to affirm unless we find that the district court has

made a clear error of judgment, or has applied the wrong legal standard.” Rance v.

Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009) (internal

quotation marks and citation omitted).

The district court did not abuse its discretion when it denied Bonds’s motion

as an “[im]proper vehicle . . . to challenge his guilty plea.” Rule 33 provides that a

district court “may vacate any judgment and grant a new trial if the interest of

justice so requires,” and if the case is tried without a jury, to “take additional

testimony and enter a new judgment.” Fed. R. Crim. P. 33(a). By its terms, Rule 33

2 Case: 16-17043 Date Filed: 10/16/2018 Page: 3 of 3

applies only when the defendant has gone to trial. Bonds could not use Rule 33 to

challenge his guilty plea. See United States v. Prince, 533 F.2d 205, 208 (5th Cir.

1976). Even if construed as a motion to withdraw the plea, Bonds’s motion failed

because, as the district court stated, “it was filed post-sentencing.” See Fed. R.

Crim. P. 11(d) (stating that a motion to withdraw must be filed “before [the district

court] imposes sentence”). And the district court correctly refused to treat Bonds’s

motion as seeking to vacate his sentence, 28 U.S.C. § 2255, because he could “not

seek collateral relief while his direct appeal [was] pending.” See United States v.

Khoury, 901 F.2d 975, 976 (11th Cir. 1990).

Bonds acknowledges that his claim of ineffective assistance of counsel is not

ripe for review. As Bonds states, “the record below did not develop a challenge

pertaining to trial counsel’s ineffectiveness.” Bonds can raise any challenges to

trial counsel’s representation in a postconviction motion. See 28 U.S.C. § 2255.

We AFFIRM Bonds’s conviction.