USA v. Tony Bolar

Filing 511091623

Case: 09-30577

Document: 00511091623

Page: 1

Date Filed: 04/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 26, 2010 N o . 09-30577 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. T O N Y ANTHONY BOLAR, D e f e n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 5:07-CR-50059

B e fo r e KING, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* T o n y Bolar pleaded guilty to one count of possessing stolen property in v io la t io n of 18 U.S.C. § 2315. The district court sentenced Bolar to 36 months' im p r is o n m e n t and ordered him to pay $91,799.96 in restitution. Bolar appeals h is conviction, arguing that the factual basis was insufficient to support his g u ilt y plea. For the following reasons, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Case: 09-30577

Document: 00511091623

Page: 2

Date Filed: 04/26/2010

No. 09-30577 B AC KG R OU N D B o la r owns a small trucking company. On August 25, 2004, a tractort r a ile r driven by one of Bolar's drivers was stopped at the Greenwood weigh s ta tio n in Louisiana. After inspecting the tractor's and the trailer's vehicle id e n t ific a t io n numbers (VINs), the state police determined that both VINs had b e e n altered. Their suspicions raised, the state police assigned Sergeant Buddy M e r r it t to investigate. Merritt determined that the tractor had been stolen four y e a r s earlier from a dealership in Oklahoma and that the trailer had been stolen e le v e n years earlier in Arkansas. Merritt telephoned the Oklahoma dealership t o ask about the stolen tractor; the dealership personnel recalled that Bolar had t e s t driven the tractor three days before it was stolen and that they could not fin d the keys to the tractor following this test drive. Merritt also obtained r e c o rd s from the Alabama Bureau of Investigation indicating that stolen trailers w it h modified VIN plates had been seized from Bolar's business at least three tim e s . M e r r it t contacted Bolar to discuss the matter. Bolar explained that the t r a c to r 's VIN was inconsistent because he had moved the VIN plate from a n o t h e r tractor in order to get the seized tractor to another state for repairs. B o la r also claimed to have bought the tractor in 2003 at a truck stop from a man n a m e d Stewart Franklin; Merritt testified that purchasing a tractor at a truck s to p was "not common." Bolar also produced a bill of sale for the tractor, which lis t e d an invalid VIN for the vehicle, but he could not produce a title for the v e h ic le . Bolar provided a contact number for Franklin, but Merritt was unable t o reach him. Regarding the trailer, Bolar claimed to have purchased it through a former employee, and he "believed this individual switched trailers with him a n d switched the VIN plate on the trailer." However, Merritt was unable to c o n ta c t this individual based on the contact information that Bolar gave him.

2

Case: 09-30577

Document: 00511091623

Page: 3

Date Filed: 04/26/2010

No. 09-30577 T h e United States charged Bolar with one count of possession of property w o r t h more than $5,000 which had been stolen and transported across state lin e s in violation of 18 U.S.C. § 2315, based on his possession of the stolen tr a c to r and trailer.1 Bolar missed his first trial date, but at a hearing on April 1 8 , 2008, Bolar appeared before the court to plead guilty to the charge, pursuant t o a plea agreement. Following a plea colloquy and testimony from Merritt, the d is tr ic t court accepted Bolar's plea. Following this plea, Bolar sent a letter to the district court, claiming his in n o c e n c e . In the letter, Bolar argues that it was impossible for him to have s to le n the tractor and that he only pleaded guilty based on bad advice.2 Based o n this letter, the Presentence Investigation Report (PSR) did not award any r e d u c tio n for acceptance of responsibility, and it added two points for obstruction o f justice, given that Bolar had also failed to show for trial. The PSR

r e c o m m e n d e d a sentence range of 27 to 33 months. Bolar objected to these d e t e r m in a t io n s and also objected to the total loss amount computed by the PSR. A t a sentencing hearing on July 24, 2008, Bolar recanted the letter b e c a u se , when he wrote it, he thought that he had been accused of "stealing" the t ra cto r. Now understanding the charge, Bolar stated that he "accepted

r e s p o n s ib ility " for the charged crime and argued for a reduction in offense level. T h e district court overruled Bolar's objections to the PSR and sentenced Bolar

Section 2315 provides, in relevant part: Whoever receives, possesses, conceals, [or] stores . . . any goods [or] wares . . . of the value of $5,000 or more, . . . which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken; . . . Shall be fined under this title or imprisoned not more than ten years, or both. 18 U.S.C. § 2315. The actual letter is not in the record. However, parts of the letter, containing these contentions, were read by the district court at Bolar's sentencing hearing.
2

1

3

Case: 09-30577

Document: 00511091623

Page: 4

Date Filed: 04/26/2010

No. 09-30577 t o 36 months' imprisonment and ordered $91,799.96 in restitution. ju d g m e n t was entered on July 25, 2008. Bolar's counsel, however, failed to file a notice of appeal until August 23, 2 0 0 8 . This court construed that notice of appeal as a motion to extend the time fo r filing a notice of appeal and remanded to the district court to determine w h e t h e r the late filing was the result of excusable neglect or good cause. On r e m a n d , the district court denied the motion to extend, finding that Bolar did not m a k e such a showing. This court then granted the Government's motion to d is m is s the appeal. Bolar retained new counsel and filed a motion for relief under 28 U.S.C. § 2255, claiming that ineffective assistance of counsel caused his late filings. T h e district court vacated and reinstated Bolar's conviction on July 7, 2009 and d i s m is s e d his § 2255 motion without prejudice.3 Bolar filed a notice of appeal on J u ly 8, 2009. D IS C U S S IO N O n appeal, Bolar argues that the district court erred by accepting his g u ilt y plea without a sufficient factual basis. Specifically, Bolar urges that the fa c tu a l basis for the plea consists solely of Merritt's testimony and that this t e s tim o n y does not establish that Bolar knew that the either the tractor or Final

Section 2255 provides, in relevant part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255 (2). The district court took these actions pursuant to United States v. West, 240 F.3d 456 (5th Cir. 2001), which outlines the procedural steps necessary to permit an outof-time criminal appeal.

3

4

Case: 09-30577

Document: 00511091623

Page: 5

Date Filed: 04/26/2010

No. 09-30577 t r a ile r was stolen.4 Further, Bolar argues that he was willing to plead guilty, b u t that he was unwilling to admit that he knew the tractor and trailer were s t o le n . Instead, Bolar insists that he pleaded guilty without admitting that he k n e w the truck was stolen, taking responsibility despite maintaining his in n o c e n c e . " A district court cannot enter a judgment of conviction based on a guilty p le a unless it is satisfied that there is a factual basis for the plea." United States v . Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008) (citing FED. R. CRIM. P. 1 1 ( b )(3 ) ).5 "If the factual basis is not sufficient as to any count, the conviction s h o u ld be vacated, and the case remanded for further proceedings . . . ." Id. (c it in g United States v. Carter, 117 F.3d 262, 265 (5th Cir. 1997) (per curiam)); a c c o r d United States v. Reasor, 418 F.3d 466, 473 (5th Cir. 2005) (" `N o t w it h s ta n d i n g an unconditional plea of guilty, we will reverse on direct a p p e a l where the factual basis for the plea as shown of record fails to establish a n element of the offense of conviction'") (quoting United States v. Spruill, 292 F .3 d 207, 215 (5th Cir. 2002)). To fulfill the Rule 11(b)(3) requirements, "[t]he district court must compare `(1 ) the conduct to which the defendant admits with (2) the elements of the o f fe n s e charged in the indictment or information.'" Hildenbrand, 527 F.3d at 4 7 4 ­ 7 5 (quoting United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en b a n c ) ). "Implicit in the district court's acceptance of a guilty plea is its

d e t e r m in a tio n that the defendant's conduct satisfied every legal element of the c h a r g e d crime." United States v. Kessee, 185 F. App'x 337, 339 (5th Cir. 2006)

Bolar does not dispute that the record indicates a sufficient factual basis for the other elements of the offense--(1) that the property listed in the indictment was stolen; (2) that the property crossed a state or United States boundary after being stolen; (3) that the defendant possessed the stolen property; and (4) that the property had a value of $5,000 or more. Rule 11 states, in relevant part that "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. FED. R. CRIM. P. 11(b)(3).
5

4

5

Case: 09-30577

Document: 00511091623

Page: 6

Date Filed: 04/26/2010

No. 09-30577 (p e r curiam) (modifications and quotation marks omitted) (citing Marek, 238 F .3 d at 315). If a defendant objects to the sufficiency of the presented factual basis in t h e district court, "the district court's acceptance of a guilty plea [i]s a factual f in d in g to be reviewed for clear error." Hildenbrand, 527 F.3d at 475. "A factual fin d in g is not clearly erroneous as long as it is plausible in light of the record as a whole." Id. (internal quotation marks omitted). "Although we review for clear e r r o r the district court's finding of a factual basis, a challenge to the legal s u f fic ie n c y of an undisputed factual basis . . . is a straightforward question of la w , reviewed de novo." Kessee, 185 F. App'x at 339 (citing Marek, 238 F.3d at 3 1 4 ; Reasor, 418 F.3d at 474).6 "When determining whether there is a factual b a s is for a guilty plea, inferences may be `fairly drawn' from the evidence a d d u c e d after the acceptance of a guilty plea but before or at sentencing." H ild e n b ra n d , 527 F.3d at 475 (citing United States v. Dyer, 136 F.3d 417, 424 n .1 3 (5th Cir. 1998)). Here, the district court did not err in concluding that the factual basis p r e s e n t e d was legally sufficient. Merritt's detailed testimony, which described s e v e r a l possible indicators that the tractor and trailer were stolen, permitted the d i s tr ic t court to draw the inference that Bolar knew that the tractor and trailer w e r e stolen. While Bolar argues that this testimony did not definitively

e s t a b lis h that he knew the tractor and trailer were stolen, the district court may fa ir ly draw inferences from the evidence presented. See Hildenbrand, 527 F.3d a t 475. Merritt testified concerning the altered VIN plates, Bolar's admission

We assume, arguendo, that Bolar's letter, claiming innocence after he pleaded guilty, raised a sufficient objection to the adequacy of the factual basis presented for his guilty plea. Thus, we do not apply plain error review. Cf. Marek, 238 F.3d at 315 (applying plain error review when a defendant does "not raise a challenge to the adequacy of the factual basis underlying her guilty plea in the district court, either by making her plea conditional . . . or by objecting thereafter, such as at her sentencing.").

6

6

Case: 09-30577

Document: 00511091623

Page: 7

Date Filed: 04/26/2010

No. 09-30577 o f switching the VIN plates, the irregular purchase of the tractor, the evidence c o n c e r n i n g the test drive and theft of the tractor, the admission of the VIN a lt e r a t io n on the trailer (even though wrongdoing was attributed to a former c o n t a c t), the lack of a title for the tractor, and the records of past theft from A la b a m a . This testimony, taken together, allowed the trial court to fairly draw t h e inference that Bolar knew that the tractor and trailer were stolen. As such, t h e factual basis presented was legally sufficient to establish that element of the § 2315 offense. Cf. United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008) (a s s e s s in g sufficiency of evidence of knowledge of drugs in a truck and stating t h a t "[k]nowledge can be inferred from control of the vehicle [containing the d r u g s ] in some cases . . . . In [other situations], this Court requires other c ir c u m s t a n t ia l evidence `that is suspicious in nature or demonstrates guilty k n o w le d g e .'" (quoting United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993)). H o w e v e r , while this testimony establishes a factual basis for that element o f the offense, Bolar must also have admitted to knowing that the tractor and t r a ile r were stolen. While Bolar contends that he never admitted that he knew th e tractor and trailer were stolen, the transcript of the plea hearing refutes this c o n t e n t io n . Specifically, on two occasions at the plea hearing, Bolar admitted t h a t he knew that the tractor and trailer were stolen. F ir s t , the district court noted that, if the case went to a jury, "the G o v e r n m e n t must [prove] each of the following [elements of the § 2315 offense] b e y o n d a reasonable doubt. . . . [T]hat the defendant knew the property was s t o l e n at the time that you possessed it. You knew that, too, didn't you?" In r e s p o n s e , Bolar nodded affirmatively, but seemed to hesitate. The district court th e n questioned Bolar as to whether he agreed, and Bolar stated "yes[,] yeah." B o la r's counsel interjected and explained that Bolar was hesitant about the " p a r t ic u la r s " of the Government's case and that he would raise some objections

7

Case: 09-30577

Document: 00511091623

Page: 8

Date Filed: 04/26/2010

No. 09-30577 t o the PSR, but that "[Bolar wa]s accepting responsibility." Bolar agreed, stating a g a in "yes, yes." A f t e r Merritt testified, the district court again asked Bolar whether he d i s a g r e e d with the testimony, in order to assess whether "the factual basis for th e plea consists of what conduct the defendant has stated, has admitted to." B o la r 's counsel responded that Bolar did not disagree with the testimony, while r a is in g again that Bolar would address certain "particulars" at sentencing.7 The tr ia l judge then accepted Bolar's guilty plea, and Bolar interjected "yeah." B o la r argues that this colloquy does not establish that he admitted that h e knew the tractor and trailer were stolen. However, to the extent that such a n argument is not directly refuted by the record ­ and it is squarely refuted­ it was not error, much less clear error, for the district court to find that Bolar a d m itt e d that he knew the tractor and trailer were indeed stolen. See, e.g., H ild e n b ra n d , 527 F.3d at 479 (finding no clear error when the defendant's a r g u m e n ts "are squarely controverted by his sworn admissions [to] support[ ] his p le a ." ) N o t h i n g presented at the sentencing hearing suggests otherwise. In

d is a v o w in g the contentions of his innocence letter, Bolar's counsel stated that "I e x p la in e d to him over and over: It's not about you stealing the truck; it's

w h e t h e r or not you possessed it. Finally I got through to him, and he understood t h a t it was possession of stolen property. . . . I think at this point Mr. Bolar u n d e r s t a n d s the nature of the offense and he is willing to accept responsibility fo r his actions." Bolar himself stated that he "accept[s] responsibility of the

At sentencing, Bolar only objected to the PSR's determinations regarding loss calculation, whether he obstructed justice by missing his first trial date, and whether he accepted responsibility for the crime, given that he wrote a letter claiming innocence. None of these objections to "particulars" suggests that Bolar did not admit that he knew the tractor and trailer were stolen. Indeed, the basis for one of Bolar's objections was that, after more fully understanding the charged offense, he accepted responsibility, contrary to the assertions of the letter.

7

8

Case: 09-30577

Document: 00511091623

Page: 9

Date Filed: 04/26/2010

No. 09-30577 t r u c k because I had it in my possession. I should have knew better, Your Honor, n o t to hold the truck that long." Again, the information presented at Bolar's s e n t e n c in g hearing does not suggest any error in the district court's finding that B o la r admitted that he knew that the tractor and trailer were stolen. T h e district court's finding that Bolar admitted conduct that met the e le m e n ts of the § 2315 offense was not clearly erroneous. Further, the factual b a s is presented for Bolar's plea was legally sufficient in that it established each e le m e n t of the § 2315 offense. Accordingly, the district court did not err in a c c e p tin g Bolar's guilty plea. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of conviction and sentence. A F F IR M E D .

9