US v. Thomas Byrd
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00203-WO-1 Copies to all parties and the district court/agency. [999432038]. [13-4686]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4686
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS MARSHALL BYRD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00203-WO-1)
Submitted:
August 29, 2014
Decided:
September 9, 2014
Before NIEMEYER and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant.
Ripley Rand, United States Attorney, Randall Galyon, Assistant
United States Attorney, Rebecca Fitzpatrick, Special Assistant
United
States
Attorney,
Greensboro,
North
Carolina,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Thomas Marshall Byrd pled guilty pursuant to a written
plea
agreement
to
conspiracy
to
distribute
cocaine
base,
21
U.S.C. § 846 (2012) (object one of Count One), and possession of
a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A)(i)
(2012)
(Count
Five).
He
was
initially
sentenced to 322 months’ imprisonment, which included a fiveyear consecutive mandatory sentence on the firearm conviction.
On
appeal,
this
court
granted
the
parties’
joint
motion
to
remand in light of Dorsey v. United States, 132 S. Ct. 2321,
2328-29 (2012) (holding that a defendant sentenced after the
effective date of the Fair Sentencing Act (“FSA”) for an offense
committed before the FSA’s effective date should be sentenced
pursuant to the FSA).
At resentencing, Byrd challenged the use of two of his
convictions
as
predicate
offenses
for
the
career
offender
enhancement; the use of a revised drug quantity stipulation; 1 and
1
In his plea agreement, Byrd stipulated to five kilograms
or more of cocaine base as it pertained to object one of Count
One.
At the Fed. R. Crim. P. 11 hearing, the district court
asked Byrd—and Byrd confirmed—that the substance involved in
object one of Count One was in fact five kilograms of cocaine
base. In the PSR, however, the probation officer corrected the
stipulated drug quantity to 280 grams of crack cocaine,
explaining that “the government has indicated that the 5
kilogram amount was a mistake and that 280 grams of cocaine base
is the correct amount.” Thereafter, at sentencing, the district
court ensured that Byrd understood the ramifications of pleading
(Continued)
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the validity of his guilty plea on Count Five.
The court denied
the objections to the PSR, and after construing Byrd’s challenge
to his guilty plea on Count Five as a motion to withdraw his
guilty plea, denied the motion.
The court imposed a downward
variance sentence of 180 months on Count One and a sixty-month
consecutive
term
on
Count
Five
for
a
total
of
240
months’
imprisonment.
On appeal, Byrd asserts that the district court abused
its discretion by denying his motion to withdraw his guilty plea
as to Count Five on the grounds that (1) the court did not
inquire as to whether he understood that he could be deemed a
career offender leading to a more severe Guidelines range; (2)
his plea was not entered knowingly and voluntarily because he
mistakenly stipulated to having distributed five kilograms of
cocaine base; and (3) he reasonably believed the Government had
agreed not to use his conviction when he was seventeen years old
to designate him a career offender and enhance his sentence.
Second, he disputes his career offender designation.
Third, he
challenges
sentence.
the
substantive
reasonableness
of
his
Last, he requests he be relieved of the appellate waiver in his
plea agreement because his “unreasonable sentence resulted in a
to the revised amount. Byrd stated he wished to plead guilty to
the lower, more favorable, quantity.
3
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miscarriage of justice.”
enforce
the
appeal
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We affirm in part, and because we will
waiver
as
to
Byrd’s
sentence,
dismiss
in
part.
This
motion
to
court
withdraw
reviews
a
guilty
a
district
plea
for
court’s
abuse
denial
of
of
a
discretion.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).
“A defendant has no absolute right to withdraw a guilty plea[.]”
Id. at 383-84 (internal quotation marks omitted).
Instead, the
defendant bears the burden of “show[ing] a fair and just reason”
for withdrawing his guilty plea.
Fed. R. Crim. P. 11(d)(2)(B);
Nicholson, 676 F.3d at 383.
This court has outlined six factors that the district
court
should
evaluate
to
determine
whether
a
defendant
is
entitled to withdraw his guilty plea:
(1)
whether
the
defendant
has
offered
credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether 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.
United
States
v.
Moore,
931
F.2d
245,
248
(4th
Cir.
1991).
While all the factors noted in Moore should be considered, the
key factor to determining whether a motion to withdraw should be
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granted is whether the Rule 11 hearing was properly conducted.
Nicholson, 676 F.3d at 384.
As noted by the Government on appeal, Byrd rests on
only one Moore factor, i.e., that his plea was not knowing and
voluntary. 2
Byrd claims that, because he was never informed by
the court during his plea hearing that he may qualify as a
career offender and therefore face a lengthier sentence, his
plea was not knowing and voluntary.
Although, admittedly, Rule
11 requires a district court to notify a defendant during the
plea colloquy of all potentially applicable statutory minimum
and maximum sentences, it “does not require courts to inform
defendants
of
the
applicable
Guidelines
sentencing
ranges[.]”
United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008).
Next,
Byrd
argues
his
plea
was
not
knowing
and
voluntary because the plea agreement and plea colloquy referred
to an incorrect stipulated drug quantity as to Count One.
Byrd
argues that the stipulation as to drug quantity on Count One
affected the involuntariness of his conviction on Count Five
regarding
the
firearm.
He
asserts
2
that
such
confusion
is
Although Byrd agreed to waive his right to appeal his
convictions in his plea agreement, a defendant’s waiver of
appellate rights cannot foreclose a colorable constitutional
challenge to the voluntariness of the guilty plea.
See, e.g.,
United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir.
1994).
5
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evidence
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that
his
plea
was
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not
knowing
and
voluntary.
The
district court discussed at length the ramifications of altering
the
stipulated
amount
and
ensured
that
Byrd
understood
the
changea change that was of great advantage to Byrdand that the
revised stipulation was knowing and voluntary.
We therefore
reject this argument.
Last,
voluntary
Byrd
because
argues
he
his
plea
not
knowing
believed
reasonably
was
and
the
Government’s
promise not to file an Information of Prior Conviction meant
that the conviction would not be used to designate him a career
offender.
In light of Byrd’s statements under oath, which are
entitled
to
“a
Allison,
431
strong
U.S.
63,
belied by the record.
presumption
74
(1977),
of
verity,”
Byrd’s
Blackledge
v.
misapprehension
is
Byrd stated during the Rule 11 hearing
that he understood that his Guidelines range would be calculated
after the preparation of the presentence report.
We conclude
the district court did not abuse its discretion in determining
that
Byrd
failed
to
establish
a
“fair
and
just
reason”
to
support his request to withdraw his guilty plea.
Byrd’s challenges to his sentence are foreclosed by
his appeal waiver.
his
right
ground.”
to
In his plea agreement, Byrd agreed to waive
appeal
“whatever
sentence
is
imposed
on
any
We review the validity of an appellate waiver de novo.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
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denied, 134 S. Ct. 126 (2013).
Where the Government seeks to
enforce an appeal waiver, this court will enforce the waiver if
it was knowing and intelligent and the issues raised on appeal
fall within its scope.
United States v. Davis, 689 F.3d 349,
354–55 (4th Cir. 2012); see United States v. General, 278 F.3d
389, 400 (4th Cir. 2002) (stating that, in determining whether
appeal
waiver
is
knowing
and
intelligent,
“totality of the circumstances”).
court
examines
Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Rule 11 colloquy and a review of the
record reveals that the defendant understood the full import of
the waiver, the waiver is both valid and enforceable.
Copeland,
707 F.3d at 528.
Based
on
the
totality
of
the
circumstances,
we
conclude that Byrd knowingly and voluntarily waived his right to
appeal his sentence on the grounds raised on appeal and, at the
Government’s
urging,
dismiss
appeal
the
we
will
from
that
enforce
part
the
of
waiver.
the
judgment
Thus,
we
imposing
sentence.
Accordingly, we affirm in part and dismiss in part.
We
dispense
with
oral
argument
7
because
the
facts
and
legal
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contentions
are
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adequately
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presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
8
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