United States v. Tyndale

209 F.3d 1292, 2000 U.S. App. LEXIS 7186, 2000 WL 430042
Court of Appeals for the Eleventh Circuit·Decided April 20, 2000·No. 94-8073, 94-8077·Published·Cited by 36 cases

Opinion

PER CURIAM:

David George Tyndale appeals convictions in two separate drug cases. In the first, known as the Georgia case, he was convicted by a jury on two counts of conspiracy and possession of cocaine with intent to distribute. See 21 , U.S.C. §§ 841(a)(1), 846. In the second, known as the North Carolina case, which had been transferred to the Northern District of Georgia pursuant to Rule 20 of the Federal Rules of Criminal Procedure, he pled guilty to one drug count under 21 U.S.C. §§ 841(a)(1) and 846. Sentencing on both cases was addressed during one hearing. He was sentenced to 240 months on each of the three counts to run concurrently. He alleges ineffective assistance of counsel for failure to raise an illegal search issue in the Georgia case. In the North Carolina case, he contends his guilty plea was not voluntary. We affirm the convictions in both cases.

The Georgia Case. Appeal. 9k-8078.

On August 15, 1989, in Clayton County, Georgia, state narcotics agents arrested Tyndale during a search pursuant to warrant for drugs in a co-defendant’s apartment where Tyndale was present. Later charged with possession with the intent to distribute cocaine, conspiracy, and using and carrying a firearm during the commission of a drug offense, Tyndale was convict'ed by a jury on two of the three counts. Tyndale argues that he was denied his Sixth Amendment right to effective assistance of counsel, because his trial attorney failed to move to suppress certain evidence.

Generally, claims of ineffective assistance of counsel are not considered for the first time on direct appeal. See Unitéd States v. Arango, 853 F.2d 818, 823 (11th Cir.1988). Although an exception exists in cases where the record is sufficiently developed, see United States v. Camacho, 40 F.3d 349, 355 (11th Cir.1994), the record is not complete enough for us to rule on Tyndale’s claim. Therefore we affirm this conviction, without ruling on the ineffective assistance of counsel claim.

The North Carolina Case. Appeal No. 9^-8077

While free on bond pending trial in the Georgia case, Tyndale was arrested in Charlotte, North Carolina for another drug offense on April 3, 1993. After the three count indictment that followed was transferred from North Carolina to the Northern District of Georgia, Tyndale pled guilty to one count of conspiracy to possess cocaine with the intent to distribute.

Tyndale argues that his guilty plea was not “voluntary, knowing and intelligent,” in violation of the Fifth Amendment. He contends that at the plea hearing, he was not advised that the ten year minimum sentence to which he was subject would be automatically enhanced pursuant to 18 U.S.C. § 3147 1 and USSG § 2J1.7 2 because he committed the North Carolina offense *1295 while released on bond awaiting trial on the Georgia offenses.

Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides that before accepting a guilty plea, the court must, in part, “inform the defendant of, and determine that the defendant understands, ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” When the defendant is informed of a mandatory minimum and maximum statutory sentence at his plea colloquy and sentenced within that range, we have determined that the failure to advise of a Sentencing Guidelines sentencing range is harmless error, as long as the defendant knew that the Sentencing Guidelines existed and that they would affect his sentence. See United States v. Mosley, 173 F.3d 1318, 1327-28 (11th Cir.1999); United States v. Casallas, 59 F.3d 1173, 1180 (11th Cir.1995).

In the district court, Tyndale did not raise an objection to the plea proceedings, nor did he move to withdraw the plea. Therefore, we review the district court’s compliance with Rule 11 for plain error, which is error that is clear or obvious and affects substantial rights. See United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). A defendant’s substantial rights are affected if the district court fails to satisfy any of the “core objectives” of Rule 11: (1) ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant understands the nature of the charges against him; and (3) ensuring that the defendant is aware of the direct consequences of the guilty plea. See Quinones, 97 F.3d at 475. Plain error analysis differs from harmless error analysis in that the defendant bears the burden of persuasion with respect to prejudice. See United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

With regard to § 2J1.7 of the Sentencing Guidelines, the district court confirmed during the plea colloquy that Tyndale knew that the Sentencing Guidelines existed and would affect his sentence. By so doing, the district court discharged its responsibility under Rule 11(c) with respect to the effect of the Guidelines on Tyndale’s sentencing range. See Mosley, 173 F.3d at 1327-28; Casallas, 59 F.3d at 1180.

The question, therefore, becomes whether Tyndale was informed of the mandatory minimum statutory sentence, and if not, whether that failure amounted to plain error. Although § 3147 is a sentence enhancement statute, it does not specify a minimum enhancement: it requires only that Tyndale “shall” be sentenced to an additional prison term of “not more than” ten years. Compare 18 U.S.C. § 3147 (1994) (current statute; no express minimum enhancement), with 18 U.S.C. § 3147 (1988) (former version of statute; providing for enhancement of “not less than two years and not more than ten years”) (emphasis added); see also USSG § 2J1.7, comment, (backg’d) (noting that although § 3147 provides for a sentence enhancement, “there is no requirement as to any minimum term”).

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United States v. Tyndale, 209 F.3d 1292, 2000 U.S. App. LEXIS 7186, 2000 WL 430042 (11th Cir. 2000).

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