Filed: Nov. 06, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4254 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STEVIE BURTON, Defendant – Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:04-cr-00559-AW) Submitted: October 27, 2009 Decided: November 6, 2009 Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jan
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4254 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STEVIE BURTON, Defendant – Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:04-cr-00559-AW) Submitted: October 27, 2009 Decided: November 6, 2009 Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jane..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4254
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVIE BURTON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:04-cr-00559-AW)
Submitted: October 27, 2009 Decided: November 6, 2009
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Sandra Wilkinson,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stevie Burton appeals the district court’s judgment
sentencing him to consecutive prison terms totaling 352 months
after pleading guilty to conspiracy to distribute cocaine and
cocaine base, and possession of a firearm in furtherance of a
drug trafficking crime. On appeal, he contends the district
court abused its discretion in denying his motion to withdraw
his guilty plea and in allowing cross-examination at the hearing
on the motion; the district court plainly erred under U.S.
Sentencing Guidelines Manual §§ 6A1.3, 6A1.4 (2005) when finding
he was not entitled to a reduction in offense level at
sentencing for acceptance of responsibility; the Government
breached the plea agreement by opposing the reduction and the
district court erred in not holding a hearing on the issue; and
his case should be remanded for resentencing in view of
Kimbrough v. United States, 552 U.S. 85 (2007). We affirm.
We review the district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States
v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant
does not have an absolute right to withdraw a guilty plea, and
he bears the burden of demonstrating to the district court’s
satisfaction that a fair and just reason supports his request to
withdraw. United States v. Moore,
931 F.2d 245, 248 (4th Cir.
1991). In deciding whether to grant the motion, the district
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court considers: (1) whether the defendant has offered credible
evidence that his plea was not knowing or not voluntary; (2)
whether he has credibly asserted his legal innocence; (3)
whether there has been a delay between the entering of the plea
and filing of the motion; (4) whether the defendant has had the
close assistance of competent counsel; (5) whether withdrawal
will cause prejudice to the Government; and (6) whether it will
inconvenience the court and waste judicial resources. Id. The
most important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Fed. R. Crim. P. 11 colloquy
at which the guilty plea was accepted; and a properly conducted
Rule 11 colloquy raises a strong presumption that the plea is
final and binding and leaves a defendant with a very limited
basis upon which to have his plea withdrawn. United States v.
Bowman,
348 F.3d 408, 414 (4th Cir. 2003).
We have reviewed the record and conclude that the
district court did not abuse its discretion in denying Burton’s
motion to withdraw his guilty plea. Burton claimed that his
plea was not knowingly entered into because he thought the plea
agreement he signed was the same as a previous version and he
was unaware of its provisions regarding forfeiture. However, in
his guilty plea colloquy, the district court specifically
questioned Burton concerning these provisions, and he confirmed
his understanding of them. At the hearing on his motion, Burton
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also expressed concern that the Government could claim that he
breached the plea agreement because his wife had filed claims to
forfeitable assets. The district court responded that it was
the court’s decision as to whether Burton was in breach of the
agreement and confirmed the Government had not asserted such a
claim before the court. At the end of the hearing, the district
court found Burton failed to present sufficient evidence to
warrant a withdrawal, as there simply was no credible evidence
showing his plea was not knowing and voluntary, and the
remaining Moore factors did not weigh in his favor. On appeal,
Burton does not allege any error in the district court’s plea
colloquy but reasserts his claim that his plea was not knowingly
entered into; contends his plea agreement was void based on his
own violation of the agreement; and complains that the district
court relied on the Moore factors in denying his motion. We
find no abuse of discretion by the district court.
Burton next contends that the district court abused
its discretion in allowing the Government to cross-examine him
at his withdrawal hearing resulting in loss of a reduction for
acceptance of responsibility. While acknowledging there were
six factors under Moore that the district court had to consider,
Burton asserted his focus in bringing the motion was “not on
strongly whether he admitted any involvement” in the offense but
whether he knowingly understood and entered his plea. When
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Burton’s attorney proposed having him testify, the district
court strongly cautioned against doing so, specifically noting
his innocence was one of the factors the court had to consider
and he risked losing points for acceptance of responsibility.
The court suggested counsel could represent what his testimony
would be. However, despite the warning, Burton decided to
testify. While he did not discuss the issue of innocence on
direct examination, the Government questioned him regarding
whether he conspired with other people to sell drugs as charged
in the indictment. The district court overruled Burton’s
objection as this was a relevant issue under the Moore standard.
As a result, Burton made statements that were inconsistent with
those in his plea agreement and guilty plea colloquy.
On appeal, Burton argues the district court’s ruling
violated Fed. R. Evid. 104(a), 611(b); and Simmons v. United
States, 390 U.S. 377 (1968). However, Rule 104(a) and Simmons
are not applicable to the hearing in this case because it was
not a motion to suppress evidence or other preliminary hearing,
and we find no abuse of discretion in the district court’s
ruling under Rule 611(b). See United States v. McMillon,
14
F.3d 948, 955-56 (4th Cir. 1994). A defendant who testifies
waives his Fifth Amendment privilege against self-incrimination
in all subject matters relevant to the direct examination and
therefore subject to proper cross-examination. See Brown v.
5
United States, 356 U.S. 148, 154-56 (1958); Johnson v. United
States,
318 U.S. 189, 195-96 (1943). Under Rule 611(b), cross-
examination is permitted as to the subject matter of the direct
examination, matters affecting the credibility of the witness,
and, in the exercise of discretion, additional matters as if on
direct examination. See Fed. R. Evid. 611(b). Here, the issue
of whether Burton claimed innocence in support of his motion to
withdraw his plea was relevant to his reasons for requesting
withdrawal and the district court’s consideration under Moore,
and it was therefore a subject matter relevant to his direct
examination on the motion. We conclude there was no abuse of
discretion in allowing the Government’s cross-examination.
Burton next contends the district court plainly erred
in not holding an evidentiary hearing under USSG § 6A1.3 to
determine whether he should receive a reduction for acceptance
of responsibility, and in failing to provide notice pursuant to
USSG § 6A1.4 that the court “planned to possibly depart from the
applicable sentencing guideline range” by denying an adjustment
for acceptance of responsibility. We find no plain error by the
district court. USSG § 6A1.4, based on Fed. R. Crim. P. 32(h),
does not apply in this case because there was no departure from
the applicable guideline range. Cf. Irizarry v. United States,
128 S. Ct. 2198, 2202-03 (2008). In any event, Burton was on
notice prior to sentencing that acceptance of responsibility was
6
a disputed sentencing factor both because of the Government’s
response to his motion to withdraw his guilty plea and the
district court’s statements at the motion hearing. Moreover,
the district court fully complied with USSG § 6A1.3, by giving
Burton an adequate opportunity to present information regarding
the disputed factor, and the court resolved the dispute at a
sentencing hearing in accordance with Fed. R. Crim. P. 32(i).
On appeal, Burton contends the district court should have
conducted an evidentiary hearing on the issue. However, the
resolution of the issue was based on Burton’s testimony at the
motion hearing; he did not seek to introduce any evidence at
sentencing or request an evidentiary hearing; and the district
court did not plainly err in failing to provide one.
Burton next contends the Government breached the plea
agreement by opposing an acceptance of responsibility reduction
and the district court erred in failing to hold a hearing on the
issue. Because Burton raises this issue for the first time on
appeal, our review is for plain error. See Fed. R. Crim. P.
52(b); Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
We find no error. The plea agreement provided the Government
was permitted to oppose any adjustment for acceptance of
responsibility if Burton attempted to withdraw his guilty plea,
among other things. Thus, the Government did not breach the
agreement when it responded to Burton’s motion to withdraw his
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guilty plea with a request that he be denied a reduction for
acceptance of responsibility, and the district court did not err
in failing to hold a hearing that Burton never requested.
Finally, Burton contends his case should be remanded
for resentencing in view of Kimbrough. Because Burton did not
preserve this claim in the district court but raises it for the
first time on appeal, our review is for plain error. See United
States v. Rodriguez, 433 F.3d 411, 414-16 (4th Cir. 2006).
Therefore, it is his burden to show that (1) an error occurred,
(2) it was plain, (3) the error affected his substantial rights,
and (4) we should exercise our discretion to notice the error.
See United States v. Olano,
507 U.S. 725, 732 (1993). We find
that Burton has not made this showing. On appeal, he argues
that if the district court knew that it had discretion under
Kimbrough to “depart” from the guideline range based on the
disparity in sentencing between powder and crack cocaine, it
“might have done so.” Even if we concluded the district court
plainly erred by treating the crack guidelines as mandatory,
Burton fails to show any prejudice because he does not point to
any nonspeculative basis in the record to indicate that the
district court would have imposed a lower sentence if it had the
benefit of Kimbrough at the time of sentencing. See United
States v. White,
405 F.3d 208, 223 (4th Cir. 2005).
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We therefore affirm the district court’s judgment. We
deny Burton’s motion to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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