Filed: Jan. 21, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4865 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALBERT EDGERTON, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:08-cr-00271-BR-1) Argued: October 27, 2010 Decided: January 21, 2011 Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J. KEITH, Senior Circuit Judge of the United States Court o
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4865 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALBERT EDGERTON, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:08-cr-00271-BR-1) Argued: October 27, 2010 Decided: January 21, 2011 Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J. KEITH, Senior Circuit Judge of the United States Court of..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4865
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT EDGERTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00271-BR-1)
Argued: October 27, 2010 Decided: January 21, 2011
Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J.
KEITH, Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant. Seth Morgan Wood,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On June 1, 2009, in the Eastern District of North Carolina,
Appellant Albert Edgerton entered a plea of guilty to three
counts (One, Two, and Five) of a superseding indictment filed
against him. Edgerton filed a motion to withdraw his plea of
guilty on July 21, 2009 and asserted that he was out of his
right mind, that he was pressured to plead guilty by his
attorney, and that he was innocent. The district court denied
Edgerton’s motion to withdraw, having found that his plea was
entered knowingly and voluntarily and that no reason existed
permitting withdrawal. The district court sentenced Edgerton to
a term of imprisonment of 229 months.
On appeal, Appellant contends that the district court erred
in accepting his guilty plea. Appellant specifically asserts
that no sufficient factual basis existed to support his plea of
guilty to Count Five of the superseding indictment since the
plea agreement referred to possession of crack rather than
possession of marijuana as set forth in Count Five of the
superseding indictment. Appellant also contends that the
district court abused its discretion in denying his motion to
withdraw his plea of guilty. We affirm.
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I. BACKGROUND
Beginning in March 2007, Warren County, North Carolina law
enforcement officers employed a confidential informant to make
controlled purchases of narcotics. Joint Appendix (“J.A.”) 10;
Pl. Br. 6. Their investigation culminated in Edgerton being
indicted (initially) on two counts of possession with intent to
distribute cocaine base (crack) on September 10, 2008 in the
Eastern District of North Carolina. J.A. 10, 121. Police
officers arrested Edgerton during a traffic stop on September
16, 2008 and searched his car (incident to his arrest). J.A.
121; Pl. Br. 6. Police officers then took Edgerton to his home
and searched it (with his consent). J.A. 121; Pl. Br. 6.
Police officers recovered $5100 from his car and two firearms
from his home. J.A. 121-22; Pr. Br. 6-7. Police officers also
took Edgerton to his grandmother’s home where he stated that he
kept drug proceeds in a car. J.A. 121-22; Pr. Br. 6-7. Police
officers found marijuana in a white Mazda, and $34,000,
ammunition and four firearms in a different car, a Chevrolet
Cavalier, which belonged to Edgerton’s father. J.A. 121-22; Pl.
Br. 6-7.
A Superseding Indictment was returned by a grand jury on
November 19, 2008, including five counts against Edgerton. J.A.
12-15. Counts One and Two were the same two counts of
possession with intent to distribute cocaine base as set forth
3
in the initial indictment against him. J.A. 10, 12-15. The
marijuana found in the Mazda in the search incident to
Edgerton’s arrest formed the basis for Count Three of the
superseding indictment, possession with intent to distribute
marijuana. J.A. 12-13; Pl. Br. 6-7. Count Four of the
Superseding Indictment alleged that Edgerton knowingly possessed
several firearms, including the two found at his home and those
recovered from the Cavalier on his grandmother’s property,
unlawfully as a convicted felon. J.A. 13; Pl. Br. 6-7. The
firearms and ammunition recovered from the Cavalier formed the
basis for Count Five of the Superseding Indictment, which
alleged that Edgerton possessed said firearms in furtherance of
drug trafficking, specifically, possession with intent to
distribute marijuana, as set forth in Count Three of the
superseding indictment. J.A. 13; Pl. Br. 6-7.
On June 1, 2009, Edgerton appeared before the district
court to enter a plea of guilty to Counts One, Two, and Five of
the superseding indictment. J.A. 18-38. The district court
recessed to permit Edgerton time to review the superseding
indictment and to ensure that he had an understanding of the
charges against him. J.A. 28-29. Following recess, Defendant’s
counsel addressed in open court Edgerton’s concern that Counts
Three, Four, and Five in the superseding indictment stated that
the offenses occurred on September 17, 2008 as opposed to
4
September 16, 2008 when he was arrested. J.A. 30-31.
Edgerton’s counsel noted that the usage of the phrase “on or
about” immediately preceding the date provided sufficient
specificity to support the charges in the superseding
indictment. Id. Neither Edgerton nor his counsel brought to
the district court’s attention the fact that the plea agreement
erroneously described the firearms crime in Count Five of the
superseding indictment as carrying of firearms in furtherance of
possession with intent to distribute 5 grams or more of cocaine
base (crack) instead of possession with the intent to distribute
marijuana.
During the plea colloquy, the district court judge asked
Edgerton if he understood his rights, and if he had read and
understood the plea agreement. J.A. 31-34. Edgerton answered
affirmatively to each of those questions. Id. Edgerton stated
that he was not threatened or forced to enter into the plea
agreement, that he had no questions about the sentencing
guidelines, that his counsel exercised professional judgment in
forecasting his potential sentence, that he was satisfied with
the services his counsel rendered to him, and that he had no
questions. J.A. 31-38. Pursuant to the plea agreement, Counts
Three and Four were to be dismissed. J.A. 34, 38, 40, 45. The
district court judge read Counts One, Two, and Five of the
superseding indictment aloud and Edgerton indicated his guilt as
5
to each charge. J.A. 34-38. The court accepted Edgerton’s
plea of guilty, having found that the plea was entered freely
and voluntarily. J.A. 38.
Edgerton filed a motion to withdraw his plea of guilty on
July 21, 2009, contending that his counsel forced him to plead
guilty against his will, that his counsel refused to investigate
the facts of his case or obtain an expert witness despite
Edgerton’s purported desire to go to trial, and that he was
innocent of the charges to which he pled guilty. J.A. 48-57.
The district court held a hearing, during which time Edgerton
stated that he pled guilty because he didn’t know what he was
doing, was losing his mind, and was pressured by his counsel.
The district court judge found that Edgerton’s plea of guilty
was entered knowingly and voluntarily and that no reason existed
to permit withdrawal. J.A. 71, 73. The district court
sentenced Edgerton to a term of imprisonment of 229 months.
J.A. 106, 110-11.
II. ADEQUATE BASIS FOR ENTRY OF GUILTY PLEA
A. Standard of Review
Generally, the adequacy of a guilty plea is reviewed in the
Rule 11 context for harmless error. United States v. Goins, 51
F.3d 400 (4th Cir. 1995). Conversely, where an error is not
preserved before the district court by noting a specific Rule 11
6
error, such as one occurring during a plea colloquy, plain error
review applies. United States v. Martinez, 277 F.3d 517, 524-27
(4th Cir. 2002); see United States v. Massenburg,
564 F.3d 337,
341-42 (4th Cir. 2009). Edgerton filed a motion to withdraw his
plea of guilty, but the motion did not specifically contend that
a specific Rule 11 error occurred during the plea colloquy and
Edgerton did not argue before the district court that an
insufficient factual basis existed to support his guilty plea.
Accordingly, plain error review applies to his claim that no
sufficient factual basis existed to support his plea of guilty
to Count Five of the superseding indictment since the plea
agreement referred to the use of firearms in furtherance of the
criminal offense of possession with intent to distribute crack
rather than marijuana, as set forth in Count 5 of the
superseding indictment.
To establish plain error, the defendant must show that
there is (1) error, (2) that is plain, and (3) that
affects substantial rights. If all three conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness,
integrity, or public reputation of judicial
proceedings.
Johnson v. United States, 520 U.S. 461, 467 (1997) (internal
citations omitted).
“Federal Rule of Criminal Procedure 11(b)(3) requires the
district court to determine whether a factual basis exists
7
before entering judgment on a guilty plea.” United States v.
Ketchum, 550 F.3d 363, 366 (4th Cir. 2008). “[T]he district
court ‘possesses wide discretion,’ and it ‘need only be
subjectively satisfied that there is a sufficient factual basis
for a conclusion that the defendant committed all of the
elements of the offense.’”
Id. (quoting United States v.
Mitchell,
104 F.3d 649, 652 (4th Cir. 1997)). A district court
judge “taking a defendant’s plea . . . need not . . . explain
the elements of each charge to the defendant on the record.”
Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005).
B. Analysis
Finding impermissible Rule 11 error, the United States
Court of Appeals for the Sixth Circuit recently vacated a
defendant’s conviction for firearm possession in furtherance of
drug trafficking and discussed the factual basis necessary to
uphold a conviction under 18 U.S.C. § 924(c). United States v.
Maye, 582 F.3d 622, 627-31 (6th Cir. 2009). The Sixth Circuit
found that the district court judge, the defendant, and the
defendant’s counsel each were confused as to what conduct
sufficiently established a § 924(c) offense.
Id. at 627. At
his sentencing hearing, the defendant expressed concern and
confusion about the § 924(c) offense.
Id. at 627-28. The
defendant’s counsel explained to the court that his client was
8
still concerned following the court’s provision of time for
counsel to explain the nature of the charge and its elements.
Id. at 628. The district court judge then read the indictment
aloud, the defendant stated that he was guilty of the charged
offense and that he understood why, the district court judge
invited the defendant to explain it before the court, and the
defendant stated that he was guilty because he “just had the gun
period, point blank” in his apartment when the cocaine sale took
place on his front porch.
Id. at 628-29 (emphasis in original).
The district court then proceeded to sentence the defendant.
The defendant appealed his sentence to the Sixth Circuit,
contending that the district court erred in finding that a
factual basis existed to support his plea of guilty, asserting
that his admission that he possessed a revolver in close
proximity to his drug transaction was insufficient.
Id. at 627-
28.
The Sixth Circuit noted that “coincidental presence of a
firearm in the vicinity of a crime is insufficient to support a
section 924(c) conviction” since such a pronouncement falls
short of the statutory requirement that the firearm be possessed
“‘in furtherance’” of drug trafficking or “possessed to advance
or promote the commission of the underlying [drug-trafficking]
offense.” Id. at 630-31. The court noted that the firearm was
not brandished during the crime, the gun may not have been
9
loaded or easily visible to the informant, and was not
sufficiently established as a “tool of [the defendant’s] trade.”
Id. at 631 n.3. Accordingly, the Sixth Circuit found that it
was unclear that the defendant understood the elements of the
charged crime and that plain error had occurred, such that the
court remanded the case to provide for a new plea hearing.
Id.
at 630.
Edgerton contends that application of Maye compels this
Court to conclude that Rule 11 error occurred such that the four
firearms described in Count Five of the superseding indictment
were not possessed by him “in furtherance of” a drug trafficking
activity, that he never admitted to specifically possessing the
four firearms described in Count Five of the superseding
indictment, and that no sufficient basis existed for the
district court to accept his plea of guilty to Count Five.
The plea colloquy plainly demonstrates that notwithstanding
a scrivener’s error in the plea agreement delineating crack
cocaine rather than marijuana as charged in the superseding
indictment, the district court judge twice accurately discussed
the nature of Count Five during the plea colloquy and Edgerton
affirmatively stated that he committed the offenses as stated by
the court. J.A. 29-37. Maye is readily distinguishable from the
instant case since, here, neither Edgerton nor his counsel
expressed any confusion as to the nature of Count Five or
10
§ 924(c) which necessitated a recitation of the elements of the
offense. Further, there was no erroneous legal pronouncement of
the elements of Count Five or any other allegation of the
superseding indictment which could provide Edgerton sufficient
basis to allege confusion as to the elements of § 924(c).
Although it is the better practice to do so, the district court
judge was not required to recite the elements of § 924(c).
Thus, the district court had a proper basis upon which to find
that Edgerton committed all of the elements of Count Five –
Edgerton admitted guilt following the district court’s reading
of the charges, explanation of potential punishment, and
extensive colloquy. Simply stated, no error occurred.
III. MOTION TO WITHDRAW PLEA OF GUILTY
A. Standard of Review
We review a district court’s denial of a motion to withdraw
a plea of guilty for abuse of discretion. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). “A court has
abused its discretion if its decision ‘is guided by erroneous
legal principles’ or ‘rests upon a clearly erroneous factual
finding.’” Brown v. Nucor Corp.,
576 F.3d 149, 161 (4th Cir.
2009) (quoting Westberry v. Gislaved Gummi AB,
178 F.3d 257, 261
(4th Cir. 1999)).
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B. Analysis
“There is no absolute right to withdraw a guilty plea.”
Ubakanma, 215 F.3d at 424. The movant bears the burden of
showing a just reason for withdrawal, and courts consider
multiple factors including:
(1) Whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
Id.; United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
In Ubakanma, the defendant sought to withdraw his plea of
guilty to a wire fraud offense. Ubakanma, 215 F.3d at 424.
This Court found that the district court’s extensive Rule 11
hearing conducted prior to the district court’s acceptance of
the defendant’s plea of guilty included the defendant’s
acknowledgement under oath that he was not coerced, that he was
guilty of the specified wire fraud offense, and that he
understood the terms of his plea agreement.
Id. These factors
necessitated that this Court find the plea was knowing and
voluntary.
Id. Further, this Court discarded the defendant’s
conclusory assertion of innocence and his claim that he was
coerced by his attorney in light of his counsel’s aggressively
12
negotiated, favorable plea agreement, and the defendant’s sworn
statements that he reviewed the plea agreement and voluntarily
agreed to its terms. Id. at 424-25. Accordingly, this Court
affirmed the district court’s denial of the defendant’s motion
to withdraw his plea of guilty. Similarly, in Moore, this Court
affirmed the district court’s denial of the defendant’s motion
to withdraw a guilty plea where six weeks elapsed between the
filing of the motion and entry of the plea, nothing in the plea
agreement supported the defendant’s claim of unconscionability,
the defendant was ably represented by counsel, and minor
quibbles with the government’s version of events did not make
the defendant’s claim of innocence credible.
Moore, 931 F.2d at
249-50.
Edgerton contends that he was “not in his right mind,” that
he was pressured to plead guilty by his attorney throughout the
case, and that he is innocent. J.A. 75. The district court
found that his contentions lacked credibility since he stated
under oath during the plea colloquy that he was guilty. The
district court found that he did not appear to lack intelligence
and he appeared well-informed. Review of the record
demonstrates that Edgerton was given additional time to review
the superseding indictment before the plea colloquy. J.A. 29.
When Edgerton argued to withdraw his plea at his sentencing
hearing, he stated that he did not possess the four firearms
13
taken from his father’s Cavalier and that he was forced to plead
guilty. J.A. 29. These statements do not erase his sworn
statements during the plea colloquy that he did possess the four
firearms in furtherance of drug trafficking, as charged in Count
Five of the superseding indictment, nor do they erase his sworn
assertion that no one threatened him or forced him to plead
guilty. J.A. 33, 38. Edgerton made sworn statements indicating
that he was not coerced to plead guilty, that he reviewed the
plea agreement with his counsel and understood its terms, that
he understood the charges in the superseding indictment and that
he committed the offenses charged in Counts One, Two, and Five.
J.A. 31-38. Thus, he simply cannot meet his burden to
demonstrate that his plea was not knowing and voluntary and that
he did not have close assistance of counsel or was threatened.
His belated claims of innocence simply are not credible. The
precedential cases Ubakanma and Moore, and the record, therefore
establish that no sufficient basis exists for this Court to find
that the district court abused its discretion in denying
Edgerton’s motion to withdraw his guilty plea.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED. There was both an adequate factual basis for
the district court’s acceptance of Edgerton’s plea of guilty and
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the district court properly denied Edgerton’s motion to withdraw
his plea of guilty.
AFFIRMED
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