USA v. Bobby Kinsey

Filing

UNPUBLISHED OPINION FILED. [09-41288 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 01/03/2011 for Appellant Bobby Brandon Kinsey [09-41288]

USA v. Bobby Kinsey ase: 09-41288 C

Document: 00511319305 Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41288 S u m m a r y Calendar December 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. B O B B Y BRANDON KINSEY, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:08-CR-226-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* B o b b y Brandon Kinsey appeals his guilty plea conviction for conspiracy to p o s s e s s with intent to manufacture, distribute, and dispense methamphetamine a n d marijuana and possession of a firearm in furtherance of a drug trafficking c r im e . Additionally, Kinsey seeks to challenge the sentence imposed by the d is t r ic t court. K in s e y argues that the district court reversibly erred by accepting his g u ilt y plea because there was an insufficient factual basis for the plea. He also
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41288 Document: 00511319305 Page: 2 Date Filed: 12/13/2010 No. 09-41288 a r g u e s that his trial counsel rendered ineffective assistance in connection with t h e guilty plea. Kinsey further argues that the waiver provision contained in the p le a agreement, which the Government seeks to enforce, is invalid due to in e ffe c t iv e assistance of counsel. K in s e y 's challenge to the sufficiency of the factual basis is raised for the fir s t time on appeal. Accordingly, review is for plain error. See United States v. P a lm e r , 456 F.3d 484, 489 (5th Cir. 2006). In this case, the record as a whole, in c lu d in g the factual basis, rearraignment colloquy, and presentence report, d e m o n s t r a t e s that Kinsey knowingly and voluntarily entered into an agreement w it h two or more people to violate the narcotics laws regarding the possession, m a n u fa c t u r in g , dispensing, and distribution of methamphetamine and m a r iju a n a . See United States v. Vonn, 535 U.S. 55, 74 (2002); United States v. G a lla r d o -T r a p e r o , 185 F.3d 307, 317 (5th Cir. 1999). Thus, there is a sufficient fa c t u a l basis to support Kinsey's plea to conspiracy to possess with the intent to m a n u fa c t u r e , distribute, and dispense methamphetamine and marijuana. The 6 0 - m o n t h sentence imposed by the district court did not exceed the 20-year s t a t u t o r y maximum set forth in 21 U.S.C. § 841(b)(1)(C). United States v. T u r n e r , 319 F.3d 716, 722-23 (5th Cir. 2003); United States v. Solis, 299 F.3d 4 2 0 , 448 (5th Cir. 2002). W e do not consider Kinsey's argument that the factual basis was in s u ffic ie n t to establish that he used, carried, or otherwise employed firearms in during and in relation to a drug trafficking crime. Kinsey was charged with p o s s e s s io n of the firearms in furtherance of a drug trafficking crime. See United S ta te s v. McGilberry, 480 F.3d 326, 329 (5th Cir. 2007). W e also decline to consider Kinsey's ineffective assistance of counsel claim o n direct appeal. United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006); s e e also Massaro v. United States, 538 U.S. 500, 503-04 (2003). Finally, we do n o t consider Kinsey's challenge to the sentence imposed because the record

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Case: 09-41288 Document: 00511319305 Page: 3 Date Filed: 12/13/2010 No. 09-41288 e s t a b lis h e s that he knowingly and voluntarily waived his right to appeal. See U n ite d States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). A F F IR M E D .

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