US v. Lonnie Bivens

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00382-JFM-1 Copies to all parties and the district court/agency. [998546829] [10-4016, 10-4295]

US v. Lonnie Bivens

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Case: 10-4016

Document: 39

Date Filed: 03/17/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4016

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LONNIE BIVENS, a/k/a Miz, Defendant - Appellant.

No. 10-4295

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. REGINALD GLOVER, a/k/a Chicago, Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:08-cr-00382-JFM-1; 1:08-cr-00382-JFM-2)

Submitted:

February 25, 2011

Decided:

March 17, 2011

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dockets.Justia.com

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Affirmed by unpublished per curiam opinion.

Howard Margulies, Columbia, Maryland; James Wyda, Federal Public Defender, Joanna Silver, Staff Attorney, Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Kwame J. Manley, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Lonnie Bivens and Reginald Glover pled guilty to

conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). Bivens was sentenced as a career

offender to 262 months' imprisonment. 240 months' imprisonment plea pursuant In to

Glover was sentenced to a Fed. R. Crim. P.

11(c)(1)(C) Bivens

agreement. his

these was

consolidated

appeals, and

claims

that

sentence

unconstitutional

procedurally unreasonable, and Glover claims that the district court abused its discretion by denying his motion to withdraw his guilty plea. Bivens does not challenge the district court's finding that he qualified for sentencing as a career offender under U.S. Sentencing challenge Guideline the Manual § 4B1.1 (2009). of the Nor career does he

court's

calculation

offender

Guidelines range.

Instead, he claims that the district court

relied on his bare record of arrests to determine his sentence in violation of his due process rights. that such reliance rendered his Bivens also contends sentence procedurally

unreasonable. We

We disagree. review a sentence for reasonableness, using an

abuse of discretion standard of review. 552 U.S. 38, 50 (2007).

Gall v. United States,

The first step in this review requires 3

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us to ensure that the district court committed no significant procedural error. (4th Cir. 2008). (or United States v. Evans, 526 F.3d 155, 161 Procedural errors include the "failing to

calculate

improperly

calculating)

Guidelines

range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence." Gall, 552 U.S. at 51. The Court then considers the

substantive reasonableness of the sentence, taking into account the totality of the circumstances. Id. In cases where, as

here, a defendant advances a constitutional challenge to his sentence, we review the claim de novo. United States v.

Copeland, 321 F.3d 582, 601 (6th Cir. 2003). We district career have reviewed the record that on and conclude was that the a

court

properly sentence

found based

Bivens his two

subject

to

offender

prior

qualifying

convictions, and not on his arrest record.

We also conclude

that the district court properly calculated Bivens's Guidelines range at 262 to 327 months' imprisonment, and by imposing a sentence at the bottom of that range, did not enhance his

sentence based on records of arrest.

Thus, we find that Bivens See United States (holding that

has not established a due process violation. v. Berry, 553 F.3d 273, 294 (3d Cir.

2009)

constitutional due process is offended whenever a sentence is 4

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increased based on inadequate evidence, such as a bare arrest record). Nor district has Bivens established the procedural 18 error. The

court

considered

relevant

U.S.C.

§ 3553(a)

(2006) factors, made an individualized assessment based on the facts presented, and adequately explained the reasons for the chosen sentence sufficient to convince us that it considered the parties' arguments and had a reasoned basis for its decision. Bivens's considered contention his arrest that the is district court by improperly the record. is not

records

unsupported Bivens's

Accordingly,

we

conclude

that

sentence

procedurally unreasonable. Glover claims that the district court abused its

discretion by not conducting a hearing to determine whether he had advanced a fair and just reason for withdrawing his guilty plea, and by not allowing him to withdraw his guilty plea. review a district court's denial of a defendant's motion We to

withdraw his guilty plea for abuse of discretion.

United States A

v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992) (en banc).

defendant does not have an absolute right to withdraw a guilty plea. 1991). United States v. Moore, 931 F.2d 245, 248 (4th Cir. Nor is a defendant automatically entitled to an

evidentiary hearing whenever he seeks to withdraw a guilty plea. Id. While a district court 5 should liberally grant an

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evidentiary hearing when a defendant seeks to withdraw a guilty plea, the a hearing fair Id. "The most important consideration in resolving a need only be granted when the the defendant request to

advances withdraw.

and

just

reason

supporting

motion to withdraw a guilty plea is an evaluation of the Rule 11 colloquy at which the guilty plea was accepted." United States

v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003); United States v. Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996). If the plea was

knowingly and voluntarily entered with the close assistance of competent counsel during a properly conducted Rule 11 guilty plea colloquy, the defendant is left with a very limited basis upon which to have his plea withdrawn. The district court may, Bowman, 348 F.3d at 414. consider several

however,

other factors in determining whether the defendant had advanced a fair and just reason." Id. They include:

(1) whether the defendant has offered credible evidence that his plea was not knowing and voluntary; (2) whether the defendant has credibly asserted legal innocence; (3) whether there has been a delay between the entering of the guilty plea and the filing of the motion; (4) whether the defendant has had close assistance of competent counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether it will inconvenience the court and waste judicial resources. Moore, 931 F.2d at 248.

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We have reviewed the record and conclude that Glover's plea was knowing and voluntary, that the district court fully complied with the Fed. R. Crim. P. 11 requirements when

accepting his plea.

Glover has not demonstrated on this record

that he advanced a fair and just reason for withdrawing the plea warranting a hearing or withdrawal of the plea. Thus, the

district court did not abuse its discretion. Accordingly, Glover's conviction. facts and legal before we affirm Bivens's sentence and affirm

We dispense with oral argument because the are and adequately argument presented not in aid the the

contentions the court

materials

would

decisional process. AFFIRMED

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