Filed: May 28, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4389 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEITH EDWARD FRAZIER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:11-cr-00113-F-1) Submitted: April 29, 2014 Decided: May 28, 2014 Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and r
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4389 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEITH EDWARD FRAZIER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:11-cr-00113-F-1) Submitted: April 29, 2014 Decided: May 28, 2014 Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and re..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4389
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH EDWARD FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00113-F-1)
Submitted: April 29, 2014 Decided: May 28, 2014
Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Keith Edward Frazier, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Keith Edward Frazier on
one count of Hobbs Act robbery, and aiding and abetting, 18
U.S.C. §§ 1951, 2 (2012) (“Count One”); one count of armed bank
robbery, and aiding and abetting, 18 U.S.C. §§ 2113(a), (d), 2
(2012) (“Count Three”); and two counts of using or carrying a
firearm during and in relation to a crime of violence, and
aiding and abetting, 18 U.S.C. §§ 924(c)(1)(A), 2 (2012)
(“Counts Two and Four”). Without a plea agreement, Frazier
pleaded guilty to Counts Three and Four. 1 The district court
sentenced him to sixty-four months on Count Three and a
consecutive eighty-four months on Count Four, for a total
sentence of 148 months’ imprisonment.
On appeal, 2 Frazier contends that his guilty plea to
the § 924(c) offense was not knowing and voluntary because the
district court failed to correctly advise him about the
mandatory minimum sentence he faced. Furthermore, he argues
that the district court improperly imposed an enhanced sentence
under § 924(c)(1)(A)(ii). For the reasons that follow, we
1
Frazier proceeded to trial on Counts One and Two and the
jury acquitted him on both counts.
2
Frazier has elected to proceed pro se on appeal.
2
affirm Frazier’s convictions but vacate the sentence and remand
for resentencing on Count Four.
Rule 11 of the Federal Rules of Criminal Procedure
requires that, prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must determine that the
defendant’s guilty plea is knowing and voluntary. United States
v. Vonn, 535 U.S. 55, 58 (2002). Because Frazier is asserting
for the first time on appeal that the district court improperly
advised him regarding the mandatory minimum penalty for his
§ 924(c) conviction, our review is for plain error. United
States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009); see
also United States v. Mescual-Cruz,
387 F.3d 1, 6-7 (1st Cir.
2004) (reviewing claim not raised in motion to withdraw before
district court for plain error).
To establish plain error, Frazier “must show: (1) an
error was made; (2) the error is plain; and (3) the error
affects substantial rights.” Massenburg, 564 F.3d at 342-43.
“The decision to correct the error lies within our discretion,
and we exercise that discretion only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.”
Id. at 343 (internal quotation marks and
citations omitted).
Before accepting a guilty plea, a district court is
required under Rule 11(b)(1)(I) to ensure that the defendant
3
understands any applicable mandatory minimum penalty. Fed. R.
Crim. P. 11(b)(1)(I). To satisfy this obligation, the court
must “clearly advise” the defendant of the applicable minimum
penalty. United States v. Good, 25 F.3d 218, 223 (4th Cir.
1994).
Prior to accepting Frazier’s guilty plea, the district
court advised Frazier about the minimum and maximum sentences he
faced on each count in the indictment, including Counts Two and
Four--the § 924(c) offenses. The court informed Frazier that he
faced a mandatory minimum sentence of twenty-five years on Count
Four. Although this was the maximum mandatory minimum exposure
Frazier faced on Count Four if he had also been convicted on
Count Two, see 18 U.S.C. § 924(c)(1)(C)(i) (twenty-five year
mandatory minimum sentence for subsequent
§ 924(c) convictions), Frazier’s mandatory minimum sentencing
exposure on Count Four was as little as five years’
imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i) (establishing five
year mandatory minimum sentence for first § 924(c) violation
without aggravating factors).
We assume without deciding that Rule 11 requires a
district court to alert a defendant as to all possible mandatory
minimum sentences and that Frazier therefore can meet his burden
with respect to the first two requirements of the plain error
standard. Cf. United States v. Goins, 51 F.3d 400, 404 (4th
4
Cir. 1995) (rejecting, in dicta, the government’s argument that
“enumerating all possible minimum sentences” would impose an
“onerous” burden on the district court). But Frazier still must
show that the error affected his substantial rights.
Specifically, in this context, he must demonstrate that he would
not have pleaded guilty but for the error. United States v.
Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Frazier has not
met his burden.
Frazier filed three motions to withdraw his guilty
plea and again challenged his guilty plea at the sentencing
hearing. But Frazier never raised the Rule 11(b)(1)(I) error in
the district court. Frazier pleaded guilty to Count Four when
he was under the impression that he faced at least twenty-five
years in prison for this offense. He cannot now credibly assert
that he would not have pleaded guilty had he been informed that
his sentencing exposure on Count Four was in fact as low as five
years. Accordingly, we conclude that Frazier has not met his
burden of showing that any error in advising him about his
mandatory minimum sentencing exposure affected his substantial
rights. We therefore reject his challenge to his guilty plea.
Next, Frazier argues that the district court
improperly sentenced him to seven years’ imprisonment on Count
Four based on its erroneous determination that a seven-year
mandatory minimum applied. We review a sentence for
5
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). The
court must “ensure that the district court committed no
significant procedural error,” including improper calculation of
the Guidelines range, insufficient consideration of the 18
U.S.C. § 3553(a) (2012) factors, and inadequate explanation for
the chosen sentence.
Id. at 51; see also United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010). In assessing Guidelines
calculations, we review factual findings for clear error, legal
conclusions de novo, and unpreserved arguments for plain error.
United States v. Strieper,
666 F.3d 288, 292 (4th Cir. 2012).
Here, the district court adopted the sentencing
calculations in the presentence report. Citing 18 U.S.C.
§ 924(c)(1)(A)(ii), the probation officer concluded that Frazier
faced a mandatory minimum sentence of seven years on Count Four,
consecutive to the sentence imposed on Count Three. Thus,
pursuant to U.S. Sentencing Guidelines Manual § 2K2.4(b) (2012),
the court sentenced Frazier to eighty-four months (seven years)
on Count Four. See USSG § 2K2.4(b) (where the defendant is
convicted of a § 924(c) offense, the Guidelines sentence is the
statutory mandatory minimum).
The minimum statutory penalty for a § 924(c)(1)(A)
offense, without enhancements, is five years. 18 U.S.C.
§ 924(c)(1)(A)(i). Section 924(c)(1)(A)(ii) provides an
6
enhanced penalty when the firearm is brandished. Brandishing,
however, is an element of the offense; accordingly, it must be
admitted by the defendant or proven beyond a reasonable doubt in
order to increase a defendant’s mandatory minimum sentence.
Alleyne v. United States, 133 S. Ct. 2151, 2155, 2163-64 (2013)
(holding that any fact that increases the statutory mandatory
minimum is an element of the offense and must be submitted to
the jury and found beyond a reasonable doubt); United States v.
Strayhorn,
743 F.3d 917, 926 (4th Cir. 2014) (applying Alleyne
to sentencing enhancement for brandishing under
§ 924(c)(1)(A)(ii)). Frazier was not charged with, nor did he
admit to, brandishing. We therefore conclude that the district
court plainly erred in imposing an enhanced penalty on Frazier
pursuant to § 924(c)(1)(A)(ii). 3
For these reasons, we vacate Frazier’s sentence on
Count Four and remand for resentencing on that count in light of
Alleyne and Strayhorn. We affirm the criminal judgment in all
other respects. We dispense with oral argument because thefacts
and legal contentions are adequately presented in the materials
3
Although the Supreme Court decided Alleyne after Frazier
was sentenced, the rule it established nevertheless applies to
this case. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
(“[A] new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in
which the new rule constitutes a ‘clear break’ with the past.”).
7
before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
8
