U.S. v. McCreary-Redd

• Decision Date: 06 February 2007
• Docket Number: No. 05-5382.,05-5382.
• Citation: 475 F.3d 718
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Perry D. McCREARY-REDD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

475 F.3d 718

UNITED STATES of America, Plaintiff-Appellee, v. Perry D. McCREARY-REDD, Defendant-Appellant.

No. 05-5382.

United States Court of Appeals, Sixth Circuit.

Submitted: November 15, 2006.

Decided and Filed: February 6, 2007.

ON BRIEF: Kim A. Tollison, Federal Defender Services, Knoxville, Tennessee, for Appellant. Tracee Plowell, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. Perry D. McCreary-Redd, Cumberland, Maryland, pro se.

Before KEITH and CLAY, Circuit Judges; MAYS, District Judge.^*

OPINION

DAMON J. KEITH, Circuit Judge.

Defendant-Appellant Perry D. McCreary-Redd ("McCreary-Redd") was charged with: (1) being an ex-felon in possession of a firearm; (2) possession with intent to distribute cocaine base; and (3) knowingly using and carrying a firearm during and in relation to a drug trafficking crime. Count one of the indictment was subsequently dropped, and McCreary-Redd pled guilty to counts two and three. The district court sentenced McCreary-Redd to 123 months of imprisonment. McCreary-Redd now appeals the district court's sentence as "unreasonable." Additionally, McCreary-Redd, proceeding pro se, appeals the district court's sentence on the basis of Rule 11 violations. See Fed. R.Crim.P. 11. For the following reasons, we VACATE and REMAND McCreary-Redd's plea pursuant to Rule 11.

I. BACKGROUND

Pursuant to McCreary-Redd's plea agreement, the following facts were stipulated by the government and McCreary-Redd as the "Agreed Rule 11 Factual Basis."

On February 4, 2004, officers from the Knoxville Police Department ("KPD") were conducting surveillance on Parking Lot F in the Walter P. Taylor Housing Project in Knoxville, Tennessee, in response to citizens' complaints of illegal drug activity. The officers, while surveilling the area, observed a dark colored vehicle being driven with the headlights off. The officers witnessed McCreary-Redd, the driver of the vehicle, leave the vehicle and enter a building.

As McCreary-Redd returned to the vehicle, he was approached by three KPD officers. Police officer Doyle Lee ("Lee") greeted McCreary-Redd and asked if he could speak with him. McCreary-Redd agreed. Lee then informed McCreary-Redd of the headlight violation and asked to see his identification. McCreary-Redd handed Lee his driver's license. Lee asked McCreary-Redd if he had any weapons or drugs on him, to which McCreary-Redd stated that he did not. Lee then asked McCreary-Redd if he could search him. In response to this request, McCreary-Redd placed his hands in the air and turned around.

As Lee frisked McCreary-Redd, Lee felt a hard object in McCreary-Redd's waistband which he immediately recognized to be a handgun. Lee then yelled "gun" and pushed McCreary-Redd forward onto his car. Thereafter, Lee removed the firearm, a loaded Smith and Wesson 10mm semiautomatic pistol, from McCreary-Redd's waistband and placed him under arrest. Incident to the arrest, officers recovered a vial attached to McCreary-Redd's key chain that contained approximately three grams of crack cocaine, individually wrapped and packaged.

On February 18, 2004, a grand jury for the Eastern District of Tennessee at Knoxville filed a three-count indictment charging McCreary-Redd with: (1) being an ex-felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) knowingly, intentionally and without authority possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); and (3) knowingly using and carrying a firearm during and in relation to a drug trafficking crime, namely possession with the intent to distribute crack cocaine as charged in count two, in violation of 18 U.S.C. § 924(c)(1). On February 20, 2004, McCreary-Redd was arrested.

On April 8, 2004, McCreary-Redd, contending that the search was illegal, moved to suppress all evidence seized during the search and any statement given by him. On October 20, 2004, the district court affirmed in part and denied in part his motion, allowing the seized items (a firearm and drugs) to be entered as evidence, but suppressing any statements McCreary-Redd made after he was placed in custody. On December 7, 2004, McCreary-Redd, without objecting to any Rule 11 violations, pled guilty to counts two and three of the indictment pursuant to a plea agreement. Count one of the indictment was subsequently dismissed.

On February 23, 2005, the district court sentenced McCreary-Redd to 123 months of incarceration. On March 4, 2005, a timely notice of appeal was filed on behalf of McCreary-Redd by his counsel. On June 29, 2005, McCreary-Redd moved to replace his appointed counsel and to proceed pro se. This Court denied the motion to dismiss counsel, but authorized McCreary-Redd to file a pro se supplemental brief. Upon reconsideration, on February 10, 2006, this Court granted McCreary-Redd's motion to dismiss his current counsel, allowing him to proceed pro se. On May 15, 2006, McCreary-Redd filed his pro se supplemental brief.

II. DISCUSSION

In this appeal, McCreary-Redd argues that: (1) the district court's sentence was "unreasonable;" and (2) his plea agreement was accepted in violation of Rule 11 of the Federal Rules of Criminal Procedure. We consider only the issue of whether the district court's acceptance of McCreary-Redd's plea agreement violated Rule 11, an inquiry we ultimately find to be dispositive in the present appeal. Therefore, we need not address McCreary-Redd's argument that his sentence was "unreasonable."

A. Standard of Review

We have "emphasized the value in a district court's adhering `meticulously' to Rule 11." United States v. Syal, 963 F.2d 900, 904 (6th Cir.1992) (citing McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). "While recognizing that the Rule 11 procedure itself is not constitutionally mandated, . . . `[i]t is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary . . . and to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.'" Id. (quoting McCarthy, 394 U.S. at 465, 89 S.Ct. 1166) (third alteration in original).

"A variance from the requirements of this rule is harmless error if it does not affect substantial rights." Fed.R.Crim.P. 11(h). Moreover, "a silent defendant has the burden to satisfy the plain-error rule and . . . a reviewing court may consult the whole record when considering the effect of any error on substantial rights." United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

"To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant's substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings." United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998).

B. The district court's failure to determine a factual basis, and to insure that McCreary-Redd understood the nature of the charges as it relates to count two violated Rule 11 and constitutes plain error

Under count two, McCreary-Redd pled guilty to knowingly, intentionally and without authority possessing with intent to distribute crack cocaine. In challenging his guilty plea under count two, McCreary-Redd argues that the district court failed to determine that there was a "factual basis" for his plea — in particular the intent to distribute element of the drug offense — in violation of Rule 11(b)(3), and that the district court further failed to determine if he understood the nature of the charge to which he pled, in violation of Rule 11(b)(1)(G). Because McCreary-Redd neglected to make these objections in the district court, we review for plain error. See Vonn, 535 U.S. at 59, 122 S.Ct. 1043.

1. The district court's failure to determine a factual basis, and to insure that McCreary-Redd understood the nature of the charges constituted plain error

In conducting the plain error review to determine the validity of McCreary-Redd's claims, we will take up the first two prongs of the plain error test together, and then address the final two prongs separately. United States v. Murdock, 398 F.3d 491, 496-97 (6th Cir.2005).

A district court errs when it "fails to comply with the clear mandate of a Federal Rule of Criminal Procedure," and this error is plain. Id. at 497. Rule 11(b)(3) states that "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea."¹ Fed.R.Crim.P. 11(b)(3). "`The purpose of this requirement is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.'" United States v. Tunning, 69 F.3d 107, 111 (6th Cir.1995) (quoting United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir.1988)). "[Rule 11(b)(3)] does not provide any guidance concerning the steps a district court should take to ensure that a factual basis exists."² United States v. Baez, 87 F.3d 805, 809 (6th Cir.1996). However, this Court, in Tunning, has previously provided guidance by explaining:

The ideal means to establish the factual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant's own words, what the defendant did that he believes constitutes the crime to which he is pleading guilty. So long as the district court ensures that the defendant's statement includes conduct — and mental state if necessary — that satisfy every element of the offense, there should be no question concerning the sufficiency of the factual basis for the guilty plea. This "ideal" method is by no means the only method, however. "We recognize that the district court may determine the existence of the Rule 11(f) factual basis from a number of sources including a...