Filed: Apr. 18, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-12980 Date Filed: 04/18/2014 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12980 Non-Argument Calendar _ D.C. Docket No. 8:11-cr-00067-SCB-TGW-1 UNITED STATES OF AMERICA Plaintiff-Appellee, versus PAUL GREGORY WILES, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (April 18, 2014) Before HULL, MARCUS, and JORDAN, Circuit Judges. PER CURIAM: Paul Gregory Wiles appeals his conv
Summary: Case: 13-12980 Date Filed: 04/18/2014 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12980 Non-Argument Calendar _ D.C. Docket No. 8:11-cr-00067-SCB-TGW-1 UNITED STATES OF AMERICA Plaintiff-Appellee, versus PAUL GREGORY WILES, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (April 18, 2014) Before HULL, MARCUS, and JORDAN, Circuit Judges. PER CURIAM: Paul Gregory Wiles appeals his convi..
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Case: 13-12980 Date Filed: 04/18/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12980
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cr-00067-SCB-TGW-1
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
PAUL GREGORY WILES,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 18, 2014)
Before HULL, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
Paul Gregory Wiles appeals his convictions after pleading guilty to
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1);
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conspiracy to possess methamphetamine with the intent to distribute, in violation
of 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c). On appeal, Mr. Wiles raises
three issues: an ineffective assistance of counsel claim related to his classification
as an armed career criminal; a challenge under Fed. R. Crim. P. 11(b)(3) to the
magistrate judge’s finding of a sufficient factual basis for his guilty plea to the
third count; and a challenge under Fed. R. Crim. P. 11(c)(1) to the magistrate
judge’s involvement during his plea hearing. We affirm.
I
After providing notice of his intent to plead guilty, Mr. Wiles consented to
having a magistrate judge conduct the change of plea hearing. At that hearing, the
magistrate judge read the three counts referenced above, and Mr. Wiles pled guilty
to each of them. Mr. Wiles admitted that he was a convicted felon, but, for
purposes relevant to sentencing, only admitted to having one prior felony
conviction. Mr. Wiles also admitted to possessing and selling methamphetamine,
possessing a firearm in furtherance thereof, and selling firearms and
methamphetamine together. After the magistrate judge’s review and explanation,
Mr. Wiles indicated he understood all of the rights he was giving up by pleading
guilty. Mr. Wiles also stated that he had discussed the case with his attorney, that
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his attorney had explained the charges to him, and that he was satisfied with his
attorney’s representation.
The magistrate judge also asked Mr. Wiles and his attorney about his
position concerning the applicability of the 15-year minimum mandatory sentence
to Mr. Wiles as an armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). Mr. Wiles’ attorney responded that he did not
think the sentence applied to Mr. Wiles, but he had put him on notice “in the
abundance of caution.” D.E. 45 at 21. The magistrate judge then explained to Mr.
Wiles that he faced a minimum mandatory sentence of 15 years if he had three
predicate drug felonies or violent crimes committed on different occasions. Mr.
Wiles acknowledged that he understood.
Finally, the magistrate judge asked about whether Mr. Wiles was offered a
plea agreement. Mr. Wiles’ attorney indicated that Mr. Wiles did not accept a plea
agreement because, though it would have dismissed the second count, it did not
affect the calculation of his sentence under the guidelines and would have limited
his right to appeal. The magistrate judge then asked Mr. Wiles if he wanted to
think about going forward without the plea agreement. After Mr. Wiles replied
“no, my head’s going all over the place,” the magistrate judge reiterated his
attorney’s statements by telling Mr. Wiles: “he said two things. One is, that it
really doesn’t give you much benefit, if any, I think is the way he put it. And that’s
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not uncommon because most of what the Government offers in their plea
agreement you can get without it. And secondly, you limit very significantly your
right to appeal.” Id. at 29-30. Mr. Wiles acknowledged that he was pleading
guilty freely and voluntarily.
The magistrate judge recommended that the district court accept Mr. Wiles’
guilty pleas because the offenses charged in the indictment were supported by an
independent factual basis and because Mr. Wiles’ guilty pleas were knowing and
voluntary. Mr. Wiles did not file any objections to the magistrate judge’s report
and recommendation, and the district court adopted it, adjudicating Mr. Wiles
guilty of the three counts.
The district court sentenced Mr. Wiles to imprisonment for 240 months in
total. At the sentencing hearing, the district court found that Mr. Wiles had four
predicate offenses under the ACCA. Mr. Wiles expressed concern to the district
court about the applicability of the ACCA, and indicated that, in pleading guilty,
he relied on his attorney’s advice that it would not apply. Mr. Wiles then requested
a trial, which the district court denied. Though the district court had discretion
under the advisory guidelines to impose a sentence of 188-235 months for the first
and second counts, it varied downward and sentenced Mr. Wiles to the mandatory
statutory minimum—180 months—for those counts, to run concurrently. Mr.
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Wiles also received a 60-month mandatory minimum sentence for the third count,
to run consecutively.
Mr. Wiles subsequently filed a motion to vacate under 28 U.S.C. § 2255,
raising nine ineffective assistance of counsel claims. One of his claims concerned
his lawyer’s failure to file an appeal after Mr. Wiles instructed him to. In granting
his § 2255 motion on that claim, the district court vacated the judgment and
sentence, and then re-imposed the same sentence, in order to allow Mr. Wiles to
appeal, see D.E. 49 at 2 (citing United States v. Phillips, 225 F.3d 1198, 1201 (11th
Cir. 2000)), but did not address his other ineffective assistance of counsel claims.
Mr. Wiles now appeals, raising only one of the nine ineffective assistance of
counsel claims he raised below and two challenges under Rule 11.
II
With regard to Mr. Wiles’ ineffective assistance of counsel claim, “it is well
settled law in this circuit that a claim of ineffective assistance of counsel cannot be
considered on direct appeal if the claims were not first raised before in the district
court and if there has been no opportunity to develop a record of evidence relevant
to the merits of the claim.” United States v. Franklin, 694 F.3d 1, 8 (11th Cir.
2012). See also United States v. Patterson,
595 F.3d 1324, 1328 (11th Cir. 2010)
(explaining that a § 2255 motion is preferable to raise an ineffective assistance of
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counsel claim “even if the record contains some indication of deficiencies of
counsel’s performance”).
In granting Mr. Wiles’ § 2255 motion, the district court specifically
explained it was not deciding the remaining ineffective assistance of counsel
claims. The record here is not sufficiently developed to review those claims, and
we disagree with Mr. Wiles’ conclusory arguments suggesting otherwise. Given
that the district court vacated its original judgment and imposed an identical
sentence in a new judgment, Mr. Wiles may raise his ineffective assistance of
counsel claims and develop a sufficient record through a properly-filed § 2255
motion. See Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011) (citing
Johnson v. United States,
544 U.S. 295 (2005)).
III
With regard to Mr. Wiles’ remaining two challenges concerning the
magistrate judge’s findings and involvement during the plea colloquy, we conclude
Mr. Wiles has waived his right to appellate review of these claims because he did
not file any objection to the magistrate judge’s report and recommendation. See
Fed. R. Crim. P. 59(b)(2) (“Failure to object . . . waives a party’s right to review.”).
See also United States v. Garcia-Sandobal, 703 F.3d 1278, 1282-83 (11th Cir.
2013). Nevertheless, even if we were to review for plain error, see United States v.
Monroe,
353 F.3d 1346, 1349 (11th Cir. 2003) (holding that failure to object to a
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Rule 11 violation in the district court results in plain error review), we find no
reversible error.
Mr. Wiles admitted that his possession of a firearm was in furtherance of the
methamphetamine offense and that he sold the firearms and methamphetamine
together. This provided a sufficient factual basis for his guilty plea to possessing a
firearm in furtherance of a drug trafficking crime, and does not constitute plain
error. See United States v. Timmons, 283 F.3d 1246, 1252-54 (11th Cir. 2002)
(“there must be a showing of some nexus between the firearm and the drug selling
operation”).
Also, though Rule 11(c)(1) provides that a “court must not participate” in
plea agreement discussions between the government and a defendant, the
magistrate judge’s discussion here did not violate this provision. The plea
negotiations had already ended due to Mr. Wiles’ rejection of the plea agreement,
and the magistrate judge’s questioning and comments were to ensure Mr. Wiles’
guilty plea was knowing and voluntary. Mr. Wiles has not shown that his
discussion with the magistrate judge compelled him to plead guilty, even if, as he
contended during his sentencing hearing, his reliance on his attorney’s advice may
have influenced him to do so. Cf. United States v. Castro, 736 F.3d 1308, 1313-15
(11th Cir. 2013) (denying Rule 11 challenge because, although district court’s
comments plausibly may have compelled the defendant to plead guilty, it was
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equally plausible that the defendant pled guilty for other reasons, including a
shorter sentence). Thus, the magistrate judge’s comments do not constitute plain
error.
IV
We affirm Mr. Wiles’ convictions and sentence.
AFFIRMED.
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