United States v. Washington

271 F. App'x 485
Court of Appeals for the Sixth Circuit·Decided March 25, 2008·No. No. 03-6566·Published·Cited by 8 cases

Opinion

OPINION

TARNOW, District Judge.

Pursuant to a guilty plea to the charge of being a felon in possession of a firearm, the district court sentenced defendant Jay-donta Lavar Washington to 15 years’ imprisonment, the statutory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). On appeal, the defendant’s appellate counsel filed a motion to withdraw, accompanied by a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders brief raises three areas of concern: (1) whether the defendant was properly sentenced as an armed career criminal; (2) whether the defendant was competent to proceed with sentencing; and (3) whether the defendant had proper consultations with trial counsel before pleading guilty. Because we conclude that none of these issues has merit, we grant counsel’s motion to withdraw and affirm the judgment of the district court.

I. Factual and Procedural Background

On January 23, 2002, a confidential informant working with the Bartlett Police Department Narcotic Division in Bartlett, Tennessee phoned the defendant, Jaydonta Lavar Washington, to arrange a drug buy. (See Presentence Investigation Report 5.) Washington agreed to sell the confidential informant one-eighth of a gram of cocaine for $100. (See id.) The two made the exchange in person, which the confidential informant recorded by use of a body wire. (See id.) The purchased drugs tested positive for cocaine and weighed 1.6 grams. (See id.)

The following day, on January 24, 2002, police searched the defendant’s home in Memphis, Tennessee pursuant to a search warrant. (See id.) The police found Washington smoking marijuana in his bedroom with three other men and arrested him for the drug transaction that occurred the previous day. (See id.) Under the mattress of the defendant’s bed, police found a .357 caliber pistol, model Sentinel [487] MK III, serial number H11061. (See id.) Washington explained that the gun belonged to his sister, and he was merely holding onto it for her. (See id.) Also discovered during the search of the defendant’s bedroom were eight rounds of .357 caliber ammunition, one round of .38 special caliber ammunition, a set of scales, and a small amount of marijuana. (See id.)

On April 10, 2002, a federal grand jury in the Western District of Tennessee returned a two-count indictment. (See R.l, Indictment at 1-3.) Count One charged the defendant with being a felon in possession of a firearm, and Count Two charged him with being a felon in possession of ammunition, both in violation of 18 U.S.C. § 922(g). (See id.) Washington agreed to enter into a plea agreement with the government; in exchange for a plea of guilty to Count One of the indictment, the government agreed to drop Count Two. (See R.37, Plea Agreement at 1-2; R.39, Or. on Change of Plea at 1.) On August 30, 2002, the defendant pleaded guilty to Count One. (See R.36 Minutes Aug. 30, 2002; R.56 Transcript of Change of Plea at 16.) Count Two was dismissed by way of motion at the sentencing hearing. (See R.77, Judgment at 1.)

Prior to Washington’s sentencing hearing, a probation officer prepared a Presen-tence Investigation Report (PSIR) detailing Washington’s offense conduct, criminal history, and other relevant information. The PSIR listed 23 prior arrests and convictions as well as three pending charges, beginning when he was 16 years old, and noted that three of his prior state convictions qualified as predicate offenses under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). (See PSIR at 7-16.) Two of these predicate convictions were for burglaries and the third was for reckless homicide. (See id. at 8-9.)

At the sentencing hearing, Washington’s total offense level was calculated to be 30, based on an initial offense level of 24, a four-level enhancement for the use of a firearm or ammunition in connection with another felony offense, an enhancement to level 33 for being an armed career criminal under U.S.S.G. § 4B1.4(b)(3)(B), and a three-level reduction for acceptance of responsibility. (See id. at 6; Transcript Sentencing Hearing, Nov. 19, 2003 at 5-8.) This calculation, together with the defendant’s criminal history category of VI, resulted in a Guidelines range of 168 to 210 months’ (14 to lllh years’) imprisonment. (See PSIR at 14; Transcript Sentencing Hearing, Nov. 19, 2003 at 8.) Because the plea agreement indicated that “the United States and the defendant agree that the defendant will be sentenced to a term of imprisonment of fifteen years or the low end of the applicable sentencing guideline range, whichever is higher” (R. 37, Plea Agreement at 2, 115), the district court sentenced Washington to a term of 180 months’ imprisonment followed by five years of supervised release. (See Transcript Sentencing Hearing, Nov. 19, 2003 at 11-12.)

This timely appeal followed. On October 4, 2004, Washington’s original appellate counsel filed a motion to withdraw with an accompanying brief concluding that no relief is warranted in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). That motion to withdraw was granted on June 20, 2006. The court appointed replacement counsel, who entered his appearance on July 5, 2006. On October 6, 2006, Washington’s replacement appellate counsel filed a motion to withdraw, accompanied by an Anders brief.

II. Discussion

A. Armed Career Criminal Status

The first issue identified by Washington’s appellate counsel is whether the de[488] fendant was properly sentenced as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). This court reviews de novo a district court’s determination that a defendant qualifies as an armed career criminal. See United States v. Sawyers, 409 F.3d 732, 736 (6th Cir.2005).

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