U.S. v. London

• Citation: 568 F.3d 553
• Decision Date: 18 May 2009
• Docket Number: No. 07-31092.,07-31092.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tarry Cordell LONDON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

568 F.3d 553

UNITED STATES of America, Plaintiff-Appellee, v. Tarry Cordell LONDON, Defendant-Appellant.

No. 07-31092.

United States Court of Appeals, Fifth Circuit.

May 18, 2009.

Cristina Walker, Asst. U.S. Atty. (argued), Shreveport, LA, for U.S.

Douglas Lee Harville (argued), (Court-Appointed), Harville Law Firm, Shreveport, LA, for London.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, STEWART and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Officers executed a search warrant at Tarry London's residence, where they found firearms and crack cocaine. The Government indicted London in a fourcount indictment. London filed a motion to suppress, which the district court denied. London pleaded guilty to Counts One and Two, reserving the right to appeal the ruling on his motion to suppress. London also filed several other motions, among them a motion seeking to serve as his own counsel or co-counsel and a motion to withdraw his guilty plea, which the district court also denied. London was sentenced to 120 months imprisonment on Count One and 60 months for Count Two, to run consecutively. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 23, 2006, the Desoto Parish Sheriff's Office executed a search warrant at London's residence. The search warrant was issued at 4:55 p.m. that day. Three defense witnesses — Bertha Dunn, London's aunt; Katina Johnson, London's neighbor and cousin; and Derrick Jones, Katina's husband, testified that they saw the officers at the residence before 4:30 p.m. Officer Phillip Daniels, one officer executing the search of the residence, wrote in his narrative that the approximate arrival time was "16:00", or 4:00 p.m. The officers arrested London after they found six firearms and crack cocaine. The arrest report indicates that the arrest took place at 18:01, or 6:01 p.m.

The Government charged London in a four-count indictment, and only Counts One and Two are pertinent to this appeal.¹ In Count One, London was charged with knowingly and intentionally possessing with intent to distribute five or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1); in Count Two, he was charged with knowingly and intentionally possessing a firearm in furtherance of and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

In June 2006, London filed a motion to suppress² the evidence seized during the search of his residence and to quash the warrant based on Fourth Amendment violations. The Magistrate Judge held a hearing on the motion to suppress on December 4, 2006. During the hearing, London pointed out the officer's report indicating that the search began at 4:00 p.m., although the issuing judge did not sign the warrant until 4:55 p.m. On December 19, 2006, the Magistrate Judge issued a report and recommendation ("R&R") in which he recommended that the motion to suppress be denied. Regarding the conflicting testimony about the time the officers executed the search warrant, the Magistrate Judge stated the following:

The testimony of Defendant's relatives regarding the time the police arrived is simply not credible. The evidence shows that Cpl. Daniels simply erred when he attempted to write 6:00 p.m. in "military time" and mistakenly wrote 16:00 hours (or 4:00 p.m.) to record his arrival at Defendant's residence. In fact, the evidence shows that Cpl. Daniels obtained the search warrant at 4:55 p.m., and he arrived at Defendant's residence at approximately 6:01 p.m. to begin the search. The correct time of his arrival (18:01 hours) was recorded by Cpl. Daniels on the booking sheet (Govt. Ex. 4) and in a narrative of his report (Govt. Ex. 5). There is no credible evidence that Cpl. Daniels searched Defendant's residence before the warrant was issued.

London filed objections to the R&R, but the district court agreed with the Magistrate Judge's R&R and denied the motion to suppress. On March 5, 2007, London pleaded guilty to Counts One and Two pursuant to a written plea agreement, reserving the right to appeal the ruling on the motion to suppress.

On April 25, 2007, London filed numerous pro se motions, including a "motion to enroll as co-counsel," "motion to recuse," "motion to adopt previous and current filed motions," "motion for discovery and inspect evidence favorable to defense," "motion for compulsory process," "motion to suppress and/or dismiss/quash," "motion to withdraw plea," "motion for speedy trial," "motion to subpoena records," and he refiled numerous other motions that had been filed by his counsel and ruled on by the court. The court terminated the motions because London was represented by counsel.

On May 4, 2007, London moved to release and/or fire his counsel and to represent himself. The court relieved London's counsel from further responsibility and appointed the Federal Public Defenders Office to represent London.³ London continued with his pro se filings, which the court terminated because London was represented by counsel.

On August 9, 2007, London's new counsel filed a motion for a new hearing on the motion to suppress, arguing that London's former counsel was arrested for possession of illegal narcotics and was impaired and unable to properly represent London. The court denied the motion "on the showing made." On August 22, 2007, London, through counsel, again moved to withdraw his guilty plea, arguing that he received inadequate assistance of counsel, he was innocent, his plea was not in his best interest, the delay in filing the motion was because his new counsel was sitting for a July bar exam, and the withdrawal of the plea would not prejudice the government. The court denied the motion to withdraw the guilty plea, citing London's testimony during the Rule 11 plea colloquy and noting that London's prior counsel was arrested almost six weeks after the guilty plea. London sought reconsideration of the order denying the motion to withdraw the guilty plea, which the court denied.

At sentencing, the court determined that London's offense level was 25 and his criminal history category was V, resulting in a guidelines range of 100-125 months of imprisonment.⁴ As to Count One, London had a statutory minimum sentence of 120 months imprisonment; as to Count Two, he had a statutory minimum of 60 months imprisonment. On November 7, 2007, the court sentenced London to 120 months as to Count One and 60 months as to Count Two, to run consecutively. London appealed.

II. DISCUSSION

A. Sufficient Factual Basis Supports Guilty Plea

London argues that there is not a sufficient factual basis to support his guilty plea to Count Two, that he possessed a firearm in furtherance of a drug trafficking crime. London contends that the factual basis and the facts brought forth at the suppression hearing do not establish anything other than the mere presence of firearms near the drugs. The Government contends that London has failed to establish any error, and even if there is an error, London has not demonstrated that he would not have entered the guilty plea but for the error.

Both parties agree that this court should employ plain error review on this issue, because it was raised for the first time on appeal. See United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir.2006). Under plain error review, London must show (1) the existence of an actual error, (2) that the error was plain, and (3) that it affects substantial rights. United States v. Hope, 545 F.3d 293, 295 (5th Cir.2008). To show that the error affected London's substantial rights, he "must show a reasonable probability that, but for the error, he would not have entered the plea." Castro-Trevino, 464 F.3d at 541 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). "If these conditions are met, an appellate court may exercise its discretion to notice the forfeited error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Moreno-Florean, 542 F.3d 445, 448 (5th Cir.2008) (citation omitted).

Pursuant to Federal Rule of Criminal Procedure 11(b)(3), the court must determine that there is a sufficient factual basis for the plea before entering judgment on a guilty plea. FED.R.CRIM.P. 11(b)(3); United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir.2008). The district court must compare "(1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment or information." Id. at 474-75 (quoting United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001) (en banc)).

Count Two states as follows:

On or about March 23, 2006, in the Western District of Louisiana, the defendant, Tarry Cordell London, did knowingly and intentionally possess a firearm in furtherance and in relation to a drug trafficking crime, in violation of Title 18, United States Code, Section 924(c)(1)(A). [18 U.S.C. § 924(c)(1)(A)]

A defendant possesses a firearm in furtherance of a drug-trafficking offense when it "furthers, advances, or helps forward" that offense. United States v. McGilberry, 480 F.3d 326, 330 (5th Cir. 2007) (citation omitted). The district court may rely on facts adduced in the plea agreement and colloquy to establish that a defendant's possession of a firearm was in furtherance of drug-trafficking. United States v. Palmer, 456 F.3d 484, 489 (5th Cir.2006). Several factors are helpful in making that determination, including:

the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.

Id. at 490 (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).

The factual...