U.S. v. Mosley, 96-9475

• Decision Date: 26 April 1999
• Docket Number: No. 96-9475,96-9475
• Citation: 173 F.3d 1318
• Parties: 12 Fla. L. Weekly Fed. C 762 UNITED STATES of America, Plaintiff-Appellee, v. Anthony Marcell MOSLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

173 F.3d 1318

12 Fla. L. Weekly Fed. C 762

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Marcell MOSLEY, Defendant-Appellant.

No. 96-9475.

United States Court of Appeals,

Eleventh Circuit.

April 26, 1999.

Glen Galbaugh, Decatur, GA, for Defendant-Appellant.

Katherine B. Monahan, Amy Weil, Asst. U.S.Attys., Atlanta, Ga, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and BIRCH, Circuit Judges, and LAWSON ^*, District Judge.

BIRCH, Circuit Judge:

This appeal presents the issue of whether a guilty plea that occurs during trial can be considered in context of the trial proceedings for the purpose of complying with Federal Rule of Criminal Procedure 11(c)(1). Specifically, this case concerns whether the defendant adequately was informed of the interstate commerce element of his crime, a convicted felon possessing a firearm, and the potential period of supervised release under the Sentencing Guidelines. On the facts of this case, we affirm.

I. BACKGROUND

On July 12, 1995, defendant-appellant, Anthony Marcell Mosley, was arrested in Atlanta, Georgia, by Federal Bureau of Investigation ("FBI") agents pursuant to a probation violation warrant from Jefferson County, Alabama. ¹ While physically searching Mosley, the FBI agents discovered and seized a .22 caliber Magnum Derringer pistol and a .9 millimeter Bryco semi-automatic pistol. Both weapons were loaded. At the time of this arrest, Mosley previously had been convicted of robbery in Alabama and armed robbery in Georgia. He subsequently was indicted in the United States District Court for the Northern District of Georgia for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924.

Mosley's federal trial commenced at 9:30 A.M. on August 26, 1996. A jury was selected, and, at approximately 11:50 A.M., the prosecution and the defense gave opening statements. The prosecutor explained the elements of the crime of possession of a firearm by a convicted felon and the evidence that the government would present to prove its case. Mosley's attorney specifically asked the jurors to concentrate on the interstate commerce element of the crime. Thereafter, three government witnesses testified before the lunch recess at 12:30 P.M. The first two witnesses, the FBI agents who arrested Mosley, testified about the handguns that they found when they searched him. The other witness, the records custodian of North American Arms Company, manufacturer of one of the handguns that Mosley possessed when he was arrested, testified regarding the interstate commerce movement of this firearm.

When the trial resumed at 1:40 P.M., Mosley's counsel announced that he wanted to plead guilty. The district judge stated his concern regarding the plea, "encouraged by [Mosley's] previous conduct, ... that he will try somehow to back out of it down the road." R4-3. He explained that the jury had been impaneled because Mosley "didn't want to plead guilty; he has a jury trial." Id. The judge further advised that he did not "want [Mosley] to labor under the impression at this point that pleading guilty is going to bring him any better situation than hearing from the jury about it." Id. Nevertheless, Mosley's counsel insisted that he "would like very much to plead guilty at this time." Id.

Mosley was placed under oath and the district judge conducted the Rule 11 plea colloquy. The judge elicited that Mosley was twenty-six years old with a ninth-grade education and that he was not under the influence of medication, alcohol, or controlled substances. The judge confirmed Mosley's prior felonies and the sentences that he had received for those crimes.

The district judge noted that Mosley's trial had commenced and asked if there had been sufficient time for Mosley to discuss his guilty plea with his attorney. Mosley stated that he had and that his plea was free and voluntary. The judge explained that the government had the burden of proving Mosley guilty beyond a reasonable doubt and that his plea would preclude his right to appeal a jury verdict.

The judge then asked the prosecutor to state the balance of the government's case, or the proof that it would present in addition to the trial testimony from that morning. The prosecutor advised the district judge and Mosley of the factual basis for the government's case that established the elements of Mosley's crime, possession of a firearm that had been in interstate commerce by a convicted felon. ² At the conclusion of this recitation, the district judge questioned Mosley concerning the government's evidence:

THE COURT: ....

You have heard, Mr. Mosley, what [the prosecutor] says the rest of the government's evidence in this case would show. And of course she has also summarized the evidence we have already heard.

Do you have any disagreement with those facts?

THE DEFENDANT: No, sir.

THE COURT: Well, let me ask you this, are you the Anthony Fuller who was convicted of armed robbery in Fulton Superior Court back in March or April of '91, during that term of court?

THE DEFENDANT: Yes, sir.

THE COURT: And did you, in fact, have in your possession in the summer of '95 the two firearms that have been introduced into evidence in court here today?

THE DEFENDANT: Yes, sir.

R4-16 (emphasis added).

Confirming to the judge that there was no factual reason that Mosley should not plead guilty, his attorney then requested the prosecutor to state to Mosley the maximum statutory sentence, although his attorney said that she had informed him of the maximum sentence of ten years of imprisonment. The prosecutor responded: "It is ten years, with [a] maximum of a $250,000 fine, and three years supervised release with a $50 special assessment." Id. at 18. In response to the district judge's inquiry as to whether there was a statutory minimum sentence, the prosecutor responded: "There is no minimum sentence." Id.

Prior to accepting Mosley's plea, the district judge ascertained from Mosley and his counsel that there was no reason not to proceed with the plea:

THE COURT: And you are not saying now that there is any reason I should not accept his plea, are you?

[DEFENSE COUNSEL]: No, I am not, Your Honor.

THE COURT: Mr. Mosley, do you know of any reason I should not accept your plea of guilty at this time?

THE DEFENDANT: No, sir.

THE COURT: ....

From what you have said, and certainly from what I have heard from the government, it is my determination, Mr. Mosley, that your plea of guilty this afternoon is being made by you freely and voluntarily. And that is that you understand what your rights are in this case, far more, I might say, tha[n] most defendants who stand where you are. And that you are voluntarily, although perhaps reluctantly, giving them up in connection with your plea of guilty in this case. And further there is certainly a factual basis to support a plea of guilty, and to authorize a jury, or any other fact-finder to find you guilty beyond a reasonable doubt.

Id. at 19-20 (emphasis added).

Mosley's presentence investigation report ("PSR"), prepared on October 1, 1996, advised Mosley and his attorney that, as a Class C felon, he had a potential period of supervised release under the Sentencing Guidelines of two to three years. On November 1, 1996, Mosley's pro se motion to withdraw his guilty plea based on ineffective assistance of counsel was filed. He did not challenge his plea colloquy under Rule 11(c)(1). The district judge denied this motion. On November 26, 1996, Mosley was sentenced to seventy-two months of imprisonment, three years of supervised release, two hundred hours of community service, and a $50 special assessment. Neither Mosley nor his attorney stated any objection at his sentencing to the failure of the district judge to comply with Rule 11(c)(1) at the plea colloquy.

Mosley filed a timely notice of appeal, and the magistrate judge appointed another attorney to be his appellate counsel because of his contentions of ineffective representation by his trial counsel. Mosley currently is serving the incarceration portion of his sentence. On appeal, he argues that the district judge failed to comply with the requirements of Rule 11(c)(1) in taking his plea and that the judge should have granted his motion under Federal Rule of Criminal Procedure 32(e) to withdraw his guilty plea.

II. DISCUSSION

Mosley specifically argues on appeal that his guilty plea is invalid under Rule 11(c)(1) because the district judge did not ascertain that Mosley understood the nature of the charges to which he pled guilty with respect to the interstate commerce element of his crime and did not inform him of the Sentencing Guidelines potential range of supervised release. These allegations implicate two of the three "core principles" that we have recognized as being requisite to a knowing and voluntary guilty plea: " '(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.' " United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir.1998) (per curiam) (citation omitted). The Supreme Court has stated that "[t]he nature of the inquiry required by Rule 11 must necessarily vary from case to case." McCarthy v. United States, 394 U.S. 459, 467 n. 20, 89 S.Ct. 1166, 1171 n. 20, 22 L.Ed.2d 418 (1969); see Jones, 143 F.3d at 1419 ("There are no hard and fast rules limiting a district court's conduct of a plea colloquy."). Because Mosley did not object to the Rule 11 colloquy in district court, he must show plain error on direct appeal. ³ See United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996) (per curiam).

Regarding a defendant's understanding of "the nature of the charge to which the plea is offered," Fed.R.Crim.P. 11(c)(1), "there is no one mechanical way or precise juncture" to which a district judge...