Reid v. U.S.

Decision Date09 November 1992
Docket NumberNo. 92-1234,92-1234
PartiesLee Orville REID, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Michael A. Gross, St. Louis, Mo., argued, for appellant.

Richard E. Monroe, Asst. U.S. Atty., Springfield, Mo., argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Lee Orville Reid appeals the District Court's 1 denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Reid had pleaded guilty to two sales of amphetamines in violation of 21 U.S.C. § 841(a)(1), for which he was sentenced to 78 months' imprisonment and three years' supervised release. Reid also had pleaded nolo contendere to using, by having available for use, a firearm at one of the drug sales in contravention of 18 U.S.C. § 924(c). In accordance with the minimum mandatory sentence required by that provision, the District Court sentenced Reid for the firearm count to imprisonment for five years consecutive to the 78-month sentence. Reid did not appeal, but instead, almost 23 months after sentencing, brought a motion for postconviction relief. The District Court denied that motion on the merits without an evidentiary hearing. We decline to reach the merits, but affirm the denial of the relief requested.

After signing a plea agreement, Reid attended his plea hearing and said that he wished to enter guilty pleas to the two counts of drug distribution. His counsel indicated that he wanted to plead nolo contendere to the gun charge. In response to the Court's questioning, he stated that he understood the drug-distribution charges and that a plea of guilty would result in a large sentence. The maximum penalties for the drug-dealing charges were listed. The Court advised Reid of his right to trial and explained that a plea of nolo contendere would not reduce the sentence imposed for the firearm count. After inquiring about the voluntary nature of the pleas of guilty, the Court accepted Reid's guilty and nolo contendere pleas.

Both the plea agreement and the presentence report mention the five-year mandatory sentence for the firearm count. At the plea hearing, Reid said that he had read and signed the plea agreement and had no questions about it. At the sentencing, he stated that he had read the presentence report and that he had no objection to it. Reid's counsel expressed some objections to the sentencing report, but these did not include the claims Reid now asserts.

On appeal, Reid contends that the District Court did not follow Rule 11(c)(1) of the Federal Rules of Criminal Procedure because the Court did not inform Reid in open court of the minimum mandatory statutory penalty for the firearm count, the nature of the charges against him, the maximum possible penalties, and the effect of any special-parole or supervised-release requirements, and did not determine if the defendant understood each of these matters. Reid also argues that because he himself never actually pleaded nolo contendere in so many words, he was denied his rights under Rule 11, and the Court was inadequately informed on whether this plea was knowing and voluntary. Reid also contends that he should have been sworn in before pleading and that he was not told of his rights and the consequences of his pleas until after he had pleaded. Although he read and was given the opportunity to contest the presentence report, Reid neither raised any of these issues at the plea hearing or sentencing nor filed an appeal addressing them.

The Supreme Court has stated that "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). "[N]ormally a collateral attack should not be...

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