U.S. v. Kelly, 07-3032.

Citation552 F.3d 824
Decision Date13 January 2009
Docket NumberNo. 07-3032.,07-3032.
PartiesUNITED STATES of America, Appellee v. Edward Kenneth KELLY, Jr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 06cr00153-01).

Raymond J. Rigat, appointed by the court, argued the cause for the appellant.

SuzAnne C. Nyland, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III and Mary B. McCord, Assistant United States Attorneys, were on brief.

Before GINSBURG, HENDERSON and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge ROGERS.

KAREN LECRAFT HENDERSON, Circuit Judge:

Edward Kenneth Kelly, Jr. (Kelly) appeals his conviction on one count of unlawfully possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841(a), (b)(1)(C) and one count of using, carrying and possessing a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). Kelly claims that his guilty plea was not voluntary, knowing, intelligent or adequately supported by the record; his plea to the section 924(c) violation in particular violated the Double Jeopardy Clause of the United States Constitution; and he received ineffective assistance of counsel regarding the section 924(c) plea. For the reasons set forth below, we affirm the judgment of the district court.

I.

In June 2004, pursuant to court order the FBI began intercepting and recording Kelly's telephone conversations. The wiretap concluded on August 28, 2004 and, on September 1, 2004, the FBI applied for, and obtained, warrants to search Kelly's vehicle and his girlfriend's apartment located at 1526 Potomac Ave., S.E., Washington, D.C. The warrants were executed on September 2, 2004 at 6:37 a.m. Upon searching the apartment, the FBI discovered in the living room a backpack containing two plastic bags that held 497.1 grams of cocaine hydrochloride and, approximately twenty feet from the backpack and under a mattress, a loaded Glock 9-millimeter handgun. FBI agents also retrieved approximately $46,500 from inside the apartment.

On June 1, 2006, a federal grand jury indicted Kelly on (1) one count of unlawfully possessing with intent to distribute (PWID) cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(c);1 (2) one count of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1); and (3) one count of using, carrying and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c).2 Indictment at 1-2, United States v. Kelly, Cr. No. 06-153 (D.D.C. June 1, 2006) (D.C.Indictment).

The district court held plea hearings on October 31, 2006 and November 2, 2006. At the November 2nd hearing, Kelly entered into a plea agreement in which he agreed to plead guilty to the first and third counts in exchange for the dismissal of the second count and the government's withdrawal of a notice of a prior felony drug conviction. Plea Agreement at 1-2, United States v. Kelly, Cr. No. 06-153 (D.D.C. Nov. 2, 2006). Kelly also agreed to the above-mentioned facts, accepting them as "fair[] and accurate[]." Id. at 2; see also Statement of Offense at 3, United States v. Kelly, Cr. No. 06-153 (D.D.C. Nov. 2, 2006).

During the earlier October 31 st plea hearing, Kelly verified that he had fully read and discussed the plea agreement with defense counsel. Transcript of Guilty Plea at 20, United States v. Kelly, Cr. No. 06-153 (D.D.C. Oct. 31, 2006) (Tr.). In explaining the government's burden of proof, the district court specified that, as to count one, the government would have to prove beyond a reasonable doubt that Kelly "possessed cocaine[,] ... that [he] did so with the intent to distribute it, and ... that [he] knew that the substance that [he] possessed was a controlled substance, namely cocaine." Id. at 33. As to count three, the district court explained that the government would have to prove that Kelly "committed the crime of unlawful possession with intent to distribute cocaine" and that he "knowingly used or carried a firearm during and in relation to the commission of that crime or [he] knowingly possessed a firearm in furtherance" thereof. Id. at 33-34. Kelly agreed with the government's factual proffer except that he denied telling the FBI that "[t]here was a loaded gun in the bedroom." Id. at 37-38. Kelly explained to the district court that the cocaine in the backpack was not his but instead belonged to someone else who had swapped vehicles with Kelly the day before and left the cocaine in a backpack in Kelly's vehicle. Id. at 39, 61-62. Kelly thought there was money in the backpack but, after receiving a telephone call from the person stating that he needed to get the package from the vehicle, Kelly "thought it was drugs and it was." Id. at 48, 61-62. Kelly further explained that he transferred the backpack to the apartment because his car had been broken into earlier. Id. at 63-64, 93. He also stated that he kept the gun in the apartment in order to protect himself, his girlfriend "and whatever was in there." Id. at 63.

At the November 2nd hearing, Kelly clarified that he had first become aware of the drugs in the backpack when he parked his car in the driveway of his girlfriend's residence. Id. at 87-88. He explained that he knew who the drugs belonged to and believed that the owner was in fact going to sell the drugs. Id. at 88-89. When asked whether he took the drugs into the apartment to protect them, Kelly responded that he "didn't give it that much thought ... [but] fe[lt] like it's probably a better chance that the bag would be safe [sic] in the house than in the truck." Id. at 92-93. He also agreed that "if somebody broke [into the apartment] and [he] saw them trying to take some of [his] property, [he] wouldn't hesitate to think about using the gun to keep them from stealing [his] property." Id. at 96. The district court then observed that, although "this is one of the most razor-thin proffers [it had] ever taken[, it] think[s] given the facts that have come out ... we may be able to go forward." Id. at 98. As the plea hearing continued, Kelly alerted the judge to the fact that he had been charged with another section 924(c) violation in Maryland and that he believed it was the same section 924(c) violation as the one to which he was then pleading guilty. Id. at 104-05.3 The district court nonetheless reasoned that because "the facts that occurred on September 2, 2004, that are the subject of this charge could well have been multiple crimes"—so that the predicate crime for each section 924(c) count was different—"there may not be a double jeopardy problem."4 Id. at 117. Kelly's counsel agreed. Id. at 118 ("Right, and even though it's the same gun, it's a different drug trafficking offense."). Kelly then advised the court that he was ready to plead guilty to counts one and three of the indictment and that he did so "voluntarily and of his own free will." Id. at 126-27. The district court accepted Kelly's guilty plea, id. at 127, and subsequently sentenced him to 50 months' imprisonment on count one and 60 months' imprisonment on count three, to run consecutively, followed by 36 months of supervised release on count one and 48 months on count three, to run concurrently. Kelly filed his notice of appeal on March 7, 2007.

II.
A. Double Jeopardy

Kelly argues that his guilty plea on the section 924(c) count should be vacated because he had previously been charged with, and acquitted of, a section 924(c) violation in Maryland involving the same handgun and, therefore, the district court plainly erred in not recognizing that the Double Jeopardy Clause barred the second section 924(c) charge. Kelly also contends that his section 924(c) conviction should be vacated (or at least remanded for an evidentiary hearing) because his trial counsel was ineffective in not raising a double jeopardy defense and, thus, violated Kelly's Sixth Amendment right to counsel. We apply plain error review to the double jeopardy issue because Kelly "allow[ed] [the] alleged error to pass without objection" below. In re Sealed Case, 283 F.3d 349, 352 (D.C.Cir.2002); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (under plain error standard, appellant must establish that (1) there was an "error," (2) it was "plain," (3) it "affect[ed] substantial rights" and (4) it "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings") (internal citations and quotation marks omitted). To establish ineffective assistance of counsel, "a criminal defendant must show ... that his lawyer made errors `so serious that counsel was not functioning as the "counsel" guaranteed ... by the Sixth Amendment,' and that ... there is a `reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Rashad, 331 F.3d 908, 909 (D.C.Cir.2003) (internal citations omitted).

As a starting point, we note that "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea ... foreclose the collateral attack ... [unless] on the face of the record the court had no power to enter the conviction or impose the sentence." United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). It is clear from the face of the record that the district court was authorized to accept Kelly's guilty plea to the section 924(c) charge. The section 924(c)...

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