USA v. Stotts

Filing

UNPUBLISHED OPINION FILED. [08-41185 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/26/2010 for Appellant Clayton Evans Stotts [08-41185]

USA v. Stotts

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Case: 08-41185

Document: 00511253428

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Date Filed: 10/05/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 5, 2010 N o . 08-41185 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C L A Y T O N EVANS STOTTS, D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Eastern District of Texas USDC No. 4:08-CR-47-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* A p p e lla n t Clayton Evans Stotts ("Stotts") appeals his conviction and 188m o n th sentence for conspiracy to possess with intent to distribute more than 15 k ilo g r a m s of cocaine on the grounds that the district court lacked a sufficient fa c t u a l basis to accept his guilty plea. We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 08-41185

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Date Filed: 10/05/2010

No. 08-41185 I . Factual and Procedural Background O n February 23, 2008, police stopped Stotts for a traffic violation. After a subsequent pat down search, Stotts fled from police. Shortly thereafter, he w a s taken into custody. In the searches of his vehicle and apartment that fo llo w e d , police discovered approximately 3,500 grams of cocaine, 68.756 grams o f ecstasy, 1.46 grams of methamphetamine, 1 ketamine pill, 1.8 grams of 2,5d im e t h o x y p h e n e th y la m in e , and a .45 caliber handgun from which the serial n u m b e r had been scratched off. S t o t t s was charged by way of a two count indictment. Count One charged S t o t t s with conspiracy to possess with intent to distribute 5 kilograms or more o f cocaine. Count Two charged Stotts with possession of a firearm in furtherance o f a drug trafficking crime. Stotts entered into a written plea agreement with t h e Government. He agreed to plead guilty to Count 1. In exchange, the

G o v e r n m e n t dismissed Count 2 and agreed to bring no additional "non-taxr e la t e d " charges based upon the same underlying conduct. I n connection with his plea agreement, Stotts executed a statement of facts in support of his plea. He admitted that he was the individual identified by the in d ic t m e n t and that the offense conduct occurred in the Eastern District of T e x a s . He admitted that he made an agreement to possess with intent to d is t r ib u t e at least 15 kilograms of cocaine with one or more persons. He

a d m it t e d that he knew the unlawful purpose of the agreement and that he joined i n it with the intent to further it. Finally, he admitted that the amount of c o c a in e involved during the term of the conspiracy was greater than 15 k ilo g r a m s of cocaine but less than 50 kilograms. W h e n Stotts appeared in court to plead guilty, he again admitted to the fa c t s underlying the charges against him. In response to the district court's q u e s t io n in g , Stotts admitted that he "made an agreement to knowingly and in t e n t io n a lly distribute and possess with intent to distribute at least 15 2

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No. 08-41185 k ilo g r a m s but less than 50 kilograms of a mixture or substance containing c o c a in e ." The district court asked whether Stotts "enter[ed] into an agreement w it h someone else to possess with intent to distribute that quantity of cocaine," a n d Stotts responded, "Yes, sir." Stotts acknowledged that he knew the

a g r e e m e n t was unlawful when he joined it and that he participated with an in t e n t to further it. Finally, he admitted that the amount of cocaine involved in t h e conspiracy in fact involved at least 15 kilograms of cocaine but less than 50 k ilo g r a m s of cocaine. Later, at sentencing, Stotts provided corroborating

e v id e n c e of his participation in the conspiracy when he explained that he had p r o v id e d police with his associates' "street names" and telephone numbers and t h a t he had offered to assist in any way possible to help secure additional a rrests. Based on the stipulated facts in support of Stotts's plea agreement and his a d m is s io n s in open court, the district court accepted Stotts's plea. The court s u b s e q u e n t ly sentenced Stotts to a term of 188 months in prison and five years o f supervised release. Stotts timely appealed. I I . Standard of Review E v e n a defendant who has validly waived his right to appeal may c h a lle n g e the factual basis underlying his guilty plea. United States v.

H ild e n b r a n d , 527 F.3d 466, 474 (5th Cir.), cert. denied, 129 S. Ct. 437 (2008). This court considers the entire record of the proceedings in assessing whether t h e r e is an adequate factual basis for a guilty plea. United States v. Vonn, 535 U .S . 55, 74 (2002). Because Stotts did not object to the sufficiency of the factual b a s is underlying his plea in district court, however, we will only review for plain e r r o r . United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). To establish p la in error, an appellant must show a forfeited error that was clear or obvious a n d that affected his substantial rights. Puckett v. United States, 129 S. Ct. 1 4 2 3 , 1429 (2009). If the appellant makes such a showing, this court has the 3

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No. 08-41185 d i s c r e t io n to correct the error but only if it seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings. Id. I I I . Discussion S t o t t s alleges that the district court lacked a sufficient factual basis to find t h a t he conspired with any other person in his scheme to possess with intent to d is t r i b u t e more than 15 kilograms of cocaine.1 A district court cannot enter a ju d g m e n t of conviction based upon a guilty plea unless it is satisfied that there is a factual basis for the plea. FED. R. CRIM. P. 11(b)(3). The district court must c o m p a r e the conduct that the defendant admits with the elements of the offense c h a r g e d in the indictment or information. Hildenbrand, 527 F.3d at 474-75. The fa c t u a l basis for the guilty plea must be specific enough to allow the court to d e t e r m in e that the defendant's conduct constituted a crime. See United States v . Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006). In addition to the facts a d d u c e d in the plea agreement and during the colloquy, this court may also c o n s id e r inferences "fairly drawn" from evidence presented after the plea but b e fo r e or at sentencing. Hildenbrand, 527 F.3d at 475. We conclude that Stotts h a s not met the high burden necessary for a reversal under plain error review. S t o t t s admitted to engaging in specific factual conduct both in writing and in open court that supported his guilty plea. He admitted he made an agreement t o sell drugs. He admitted that he knew the agreement was unlawful and that h e wanted to further it. He admitted that the conspiracy had in fact involved at le a s t 15 but less than 50 kilograms of cocaine. At sentencing, he sought a

Stotts also claims that the record does not support a finding that the conspiracy involved at least 15 kilograms of cocaine. This claim of error is plainly without merit. First, Stotts admitted to the amount of cocaine three separate times: (1) in the statement of facts in support of plea; (2) when he admitted to the type of conspiracy he entered; and (3) when he specifically conceded that the conspiracy had in fact involved between 15 and 50 kilograms of cocaine. Second, the fact, as Stotts contends, that a lesser amount of cocaine was still in his possession at the time of his arrest is not inconsistent with nor does it negate his factual admissions as to quantity.

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No. 08-41185 r e d u c t io n in his sentence based on information about drug activity that he had p r o v id e d to police--including his associates' "street names"and telephone n u m b e r s . A plea of guilty on a charge of conspiracy does not clearly or obviously la c k a factual basis merely because the district court fails to solicit the full legal n a m e s of the co-conspirators or adduce separate evidence of intent beyond an e x p r e s s confession as Stotts would have us hold. Thus, the factual basis

u n d e r ly in g Stotts's plea appears to have been adequate. E v e n if we were to assume arguendo that the district court clearly or o b v io u s ly erred, however, Stotts has failed to show how that error affected his s u b s t a n t ia l rights. To prove a clear or obvious error affects substantial rights, a n appellant "must show a reasonable probability that, but for the error, he w o u ld not have entered the plea." Castro-Trevino, 464 F.3d at 541 (quoting U n ite d States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). Stotts has made no a r g u m e n t on appeal suggesting that it is reasonably probable he would have p le d not guilty but for the district court's supposed error. Arguably, this failure t o brief waives his claim. See United States v. Torres-Coronado, 369 F. App'x 5 4 9 , 550 (5th Cir. 2010) (unpublished).2 E v e n if he had briefed it, however, Stotts would not have prevailed. He s t ip u la t e d to the underlying facts in writing then admitted under oath to that s a m e course of conduct in open court. Additionally, he admitted that he had c o n fe r r e d with counsel to his satisfaction and he understood the charges against h im . Moreover, Stotts reaped substantial benefits by pleading guilty to Count O n e to secure the dismissal of Count Two and the consecutive five-year m a n d a t o r y minimum sentence it would have carried.3 Stotts's unsworn

Although unpublished decisions are not precedent, they are cited for their factual similarity and persuasive reasoning. We acknowledge that the Supreme Court will hear the case of Gould v. United States, 130 S. Ct. 1283 (2010) (granting petition for certiorari), on October 4, 2010. Should the
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No. 08-41185 a s s e r t io n s in his pro se notice of appeal that he would not have pled guilty s im p ly do not rebut these repeated admissions and the clear benefit he derived b y pleading guilty. See United States v. Imeh, 291 F. App'x 637, 642 (5th Cir. 2 0 0 8 ) (unpublished) (holding that a "bald assertion alone" is insufficient to show a reasonable probability that the defendant would have pled not guilty but for t h e district court's error). Thus, Stotts has failed to show that any error on the p a r t of the district court affected his substantial rights. IV. Conclusion F o r the reasons set forth above, we AFFIRM Stotts's conviction and s e n te n ce .

petitioner prevail in that case, criminal defendants may no longer be subject to the additional five-year mandatory minimum sentence imposed by 18 U.S.C. § 924(c). Section 924(c) underlies the charge in Count 2 of Stotts's indictment. Nonetheless, nothing about the decision in Gould can affect what Stotts would have known or been subject to on the date he decided to plead guilty--the only inquiry before us today.

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