564 F.3d 337 (4th Cir. 2009), 08-4373, United States v. Massenburg

Docket Nº:08-4373.
Citation:564 F.3d 337
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kedrick Antonio MASSENBURG, Defendant-Appellant.
Case Date:April 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 337

564 F.3d 337 (4th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Kedrick Antonio MASSENBURG, Defendant-Appellant.

No. 08-4373.

United States Court of Appeals, Fourth Circuit.

April 29, 2009

Argued: Jan. 29, 2009.

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[Copyrighted Material Omitted]

Page 339


G. Alan DuBois, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant.

Banumathi Rangarajan, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.


Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant.

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.

Before WILLIAMS, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges.

Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.


WILLIAMS, Chief Judge:

Kedrick Antonio Massenburg (" Massenburg" ) pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.A. § § 922(g) and 924 (West 2000). The district court sentenced Massenburg as an armed career criminal, imposing a term of 210 months imprisonment. On appeal, Massenburg asks us to vacate his conviction and grant him an opportunity to replead because the district court failed to inform him of his potential status as an armed career criminal-and the sentencing ramifications that would accompany such a designation-prior to accepting his plea. Massenburg did not properly object to the district court's error during the proceedings below, however, and because Massenburg has failed to show a reasonable probability that he would not have entered his plea but for this error we hold that Massenburg is not entitled to relief under the plain error standard of review.


On February 25, 2007, Kedrick Antonio Massenburg found himself involved in an argument with a neighbor. At some point, Massenburg broke off the verbal engagement and returned to his residence, where he retrieved a .22 caliber rifle. Massenburg then returned to his neighbor's home

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and pointed the rifle at his neighbor. Based on this conduct, on August 2, 2007, Massenburg was named in a one-count indictment filed in the U.S. District Court for the Eastern District of North Carolina. The indictment charged Massenburg with being a felon in possession of a firearm, in violation of 18 U.S.C.A. § § 922(g) and 924.

On October 16, 2007, Massenburg appeared before the district court, which advised Massenburg that he was being charged as a felon in possession of a firearm and that the maximum penalty for that offense was ten years imprisonment. Thus advised, Massenburg entered a guilty plea. There was no written plea agreement.

Next, the U.S. Probation Officer prepared Massenburg's presentence investigation report (" PSR" ) and recommended that Massenburg be sentenced as an armed career criminal under 18 U.S.C.A. § 924(e) (West 2000 & Supp.2008). The Probation Officer based this recommendation on several felony drug convictions that Massenburg sustained for offenses he committed in 1991 and 1992, when he was fourteen and fifteen years old. The PSR ultimately recommended a term of imprisonment of 180 to 210 months imprisonment, in light of the mandatory minimum sentence of fifteen years imprisonment required by § 924(e).

Prior to his sentencing hearing, Massenburg objected to the PSR on two grounds. First, he argued that his armed career criminal sentence enhancement was unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the prior convictions which served as the basis for the enhancement were neither alleged in the indictment nor proven to a jury. Second, he argued that the convictions serving as the predicate offenses for his armed career criminal enhancement were actually part of the same course of conduct and thus did not constitute separate offenses for the purposes of § 924(e).

During the sentencing hearing, Massenburg again objected to his classification as an armed career criminal. His counsel made the following objection:

Okay. If I may, Your Honor, first of all, we object to the status of my client being characterized as an armed career criminal. We believe the most appropriate guideline of the advisory guidelines would be 77 to 96 months. We believe that would be Level 21 Offense Category and Criminal History VI. That's how I receive that.

Saying that as such, first of all, it's a Blakely and Apprendi objection, basically stating that the three convictions when he was 14 years old were not placed in the indictment. And we would ask that that was not proven through the indictment nor did he plead to that. So, we're doing an Apprendi.

The second thing is, Your Honor-the second part of the objection is, is his convictions according to this judgement [sic] suspending sentence and commitment on special probation states that the date of offense is 12/6/90.

* * *

I'm asking this court to consider stating that those convictions do not meet the definition of armed career criminal.

(J.A. at 29-31.) The district court overruled Massenburg's objections and sentenced Massenburg to a sentence of 210 months imprisonment. At no point did Massenburg or his counsel mention Rule 11 of the Federal Rules of Criminal Procedure, and Massenburg did not move to withdraw his guilty plea. This appeal followed,

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and we possess jurisdiction under 18 U.S.C.A. § 3742(a) (West 2000).


The Federal Rules of Criminal Procedure require that a district court, before accepting a guilty plea, follow certain procedures, among which are the requirements that a defendant be informed of " any maximum possible penalty" and " any mandatory minimum penalty." Fed.R.Crim.P. 11(b)(1)(H)-(I). On appeal, Massenburg argues that his guilty plea was unknowing because the district court failed to advise him prior to his plea that he faced a potential mandatory minimum sentence of fifteen years imprisonment if sentenced as an armed career criminal.1


This is not the first time that we have confronted a situation where a district court failed to inform a defendant of a potential mandatory minimum during a plea colloquy. Most recently, in United States v. Hairston, 522 F.3d 336 (4th Cir.2008), we vacated a guilty plea involving a defendant who, during the Rule 11 proceeding, was advised that he faced a minimum sentence of thirty years. Id. at 338. In fact, the defendant was ultimately designated an armed career criminal-a designation that resulted in a mandatory minimum sentence of forty-five years for that defendant. Id. at 339. In granting Hairston relief, we noted that " while the district court at the time of the Rule 11 proceeding could not have been certain about whether Hairston would qualify as an armed career criminal, Rule 11 nonetheless required the court to anticipate the possibility and explain to Hairston the sentence that would be...

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