United States v. Joseph Wright

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MORRIS S. ARNOLD and BOBBY E. SHEPHERD (UNPUBLISHED); granting [3833990-2] motion to withdraw as counsel filed by Ms. Laine Cardarella. [3886866] [11-2863]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2863
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United States of America,
Appellee,
v.
Joseph J. Wright,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the Western
* District of Missouri.
*
* [UNPUBLISHED]
*
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Submitted: March 2, 2012
Filed: March 6, 2012
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Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In this direct appeal, Joseph Wright challenges the 180-month prison term the
district court1 imposed after he pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and was subsequently found to be
subject to an enhanced sentence under 18 U.S.C. § 924(e)(1) (in case of person who
violates section 922(g) and has three previous convictions for violent felony or
serious drug offense, or both, such person shall be imprisoned “not less than 15
years”). Wright’s counsel has moved to withdraw, and has filed a brief under Anders
1

The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

Appellate Case: 11-2863

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Date Filed: 03/06/2012 Entry ID: 3886866

v. California, 386 U.S. 738 (1967), arguing that the district court’s application of
section 924(e) was improper because (1) Wright did not have three prior convictions
that qualified under the statute as either a serious drug offense or a violent felony, and
(2) Wright had been notified at his arraignment and at his change-of-plea hearing that
he faced a maximum term of imprisonment of ten years.
Upon de novo review of the district court’s application of section 924(e), see
United States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009) (standard of review), we
first conclude that the district court correctly determined that Wright had at least three
qualifying prior felony convictions, including two burglary convictions and a drugdistribution conviction, see 18 U.S.C. § 924(e)(2) (setting forth definitions for
“serious drug offense” and “violent felony”). We further conclude that--because
Wright was given the opportunity to withdraw his guilty plea at his sentencing
hearing after he learned he was subject to the 15-year minimum prison term, but he
chose at that time to maintain his guilty plea with full knowledge of the 15-year
minimum--he cannot now challenge his sentence, or his underlying plea, based on the
representations made at his arraignment or at his change-of-plea hearing. See United
States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (defendant who explicitly and
voluntarily exposes himself to specific sentence may not challenge that punishment
on appeal); see also United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.
2006) (where defendant claimed, inter alia, that plea was not knowing and voluntary,
claim was not cognizable on direct appeal because he had not attempted to withdraw
plea in district court).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues for appeal. We note, however, that the
judgment incorrectly cites 18 U.S.C. § 924(c)(1), and we order that the judgment be
corrected to substitute section 924(e)(1) for section 924(c)(1). See 28 U.S.C. § 2106
(appellate court may modify any judgment brought before it for review).

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Date Filed: 03/06/2012 Entry ID: 3886866

We affirm the judgment as modified, and we grant counsel leave to withdraw,
subject to counsel informing Wright about the procedures for seeking rehearing and
petitioning for a writ of certiorari.
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Date Filed: 03/06/2012 Entry ID: 3886866