U.S. v. Rose, 02-5163.
| Decision Date | 11 February 2004 |
| Docket Number | No. 02-5163.,02-5163. |
| Citation | 357 F.3d 615 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Reginald Charles ROSE, III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Paul W. Laymon, Jr., Asst. U.S. Atty., U.S. Atty's Office, Chattanooga, TN, for Appellee.
Anthony Martinez (argued), Asst. F.P. Defender, Federal Defender Services of Eastern Tenn., Inc., Chattanooga, TN, for Appellant.
Reginald Rose, III (briefed), Montgomery, AL, pro se.
Before MOORE and GILMAN, Circuit Judges; MILLS, District Judge.*
The Defendant-Appellant, Reginald Charles Rose, III ("Rose"), appeals his convictions and sentence. Rose was convicted of conspiring to distribute fifty grams or more of methamphetamine mixture, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and of knowingly and intentionally carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c). In his pro se brief, Rose raises several claims of error in the district court's acceptance of his guilty pleas. Most of these errors arise from discrepancies between the descriptions of the charges in Counts One and Three as stated in the Superseding Indictment and as stated in his written plea agreement. Rose's court-appointed counsel also filed an appellate brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he has found no meritorious grounds for appeal but nonetheless raising two possible claims of error in the calculation of Rose's sentence.
For the reasons set forth below, we VACATE Rose's conviction and sentence as to Count One and REMAND for proceedings consistent with this opinion.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231 because Rose was charged with offenses against the laws of the United States. This court has jurisdiction over the appeal under 28 U.S.C. § 1291 because Rose is appealing a conviction imposed by the district court.
The facts of this case are not in dispute. In March 2001, agents with the Tennessee Bureau of Investigation ("TBI") received information from a confidential informant ("CI") that Rose could deliver methamphetamine. Presentence Report ("PSR") at 5. The CI arranged to purchase one pound of methamphetamine from Rose and to have it delivered to a residence in Meigs County, Tennessee. On March 19, 2001, the CI and an undercover TBI agent met Rose at that residence; additional TBI agents monitored the transaction.
Ralph Vasquez ("Vasquez"), a co-defendant, accompanied Rose to the residence. Previously, in Dalton, Georgia, Eric Estrada ("Estrada") had "fronted" the methamphetamine that Rose was to deliver to the CI. Estrada had sent his associate, Vasquez, along with Rose on the March 19, 2001 transaction to ensure that Estrada received payment.
At the residence in Meigs County, Rose and Vasquez negotiated to sell an additional two pounds of methamphetamine to the CI. Rose and Vasquez told the CI that they would deliver this additional methamphetamine for $20,000 at a later date. Rose and Vasquez then delivered the original one pound of methamphetamine in exchange for $11,500. Immediately thereafter, TBI agents arrested Rose and Vasquez. When the TBI agents searched the car that Rose and Vasquez used to travel to Meigs County, they found a loaded Colt .45 in plain view.
On April 11, 2001, Rose, Vasquez, and Estrada were charged in a three-count Indictment. On May 22, 2001, a Superseding Indictment named an additional three co-conspirators. In Count One of the Superseding Indictment, Rose and all five co-conspirators were charged with conspiring to distribute five hundred grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). In Count Two, Rose, Vasquez, and Estrada were charged with distributing fifty grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. In Count Three, Rose, Vasquez, and Estrada were charged with knowingly and intentionally carrying a firearm during and in relation to the drug trafficking offenses set out in Counts One and Two, in violation of 18 U.S.C. §§ 2 and 924(c).
On September 6, 2001, Rose pleaded guilty to Counts One and Three pursuant to a written plea agreement. A sentencing hearing was held on January 4, 2002, and a judgment was entered that same day, dismissing Count Two on the government's motion. There are discrepancies between the descriptions of the charges in Counts One and Three as stated in the Superseding Indictment and as stated in the plea agreement.
On January 10, 2002, Rose filed a timely notice of appeal from the district court's judgment. On July 19, 2002, Rose's court-appointed counsel, Anthony Martinez, filed an Anders brief and a motion to withdraw. In his Anders brief, Rose's counsel stated that after reviewing the entire record, he was of the opinion that there were no meritorious grounds for an appeal. Nonetheless, in his Anders brief, Rose's counsel raised the issues of whether the district court erred by including the additional two pounds of methamphetamine when determining Rose's offense level and whether the district court erred as to the extent of the downward departure in Rose's sentence on the government's 5K1.1 motion.1
On August 29, 2002, Rose filed a pro se response to his counsel's Anders brief. In his response, Rose raises the following three claims of error: (1) that the district court conducted Rose's plea hearing in a manner that violated Federal Rule of Criminal Procedure 11 ("Rule 11") and that the district court did not have jurisdiction to accept a plea to an offense that was not charged in the Superseding Indictment;2 (2) that there was insufficient evidence to support Rose's conviction for carrying a firearm during and in relation to a drug trafficking offense;3 and (3) the additional two pounds of methamphetamine that Rose and Vasquez agreed to deliver should not have been considered in calculating Rose's sentence. The government has not filed an appellate brief in this case.
The extensive and rather complicated procedural history will be set out in more detail below as it pertains to each of the issues.
The description of the charge in Count One in the plea agreement differs from that in the Superseding Indictment. In the Superseding Indictment, Count One states:
REGINALD CHARLES ROSE, III, and others unknown to the Grand Jury, did combine, conspire, confederate, and agree to knowingly, intentionally, and without authority violate Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A), that is, to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 846.
R. at 35 (Superseding Indictment) (emphases added). In the plea agreement, paragraph one states:
The defendant [Rose] agrees to plead guilty to the following counts of a Superseding Indictment filed against him in the above-styled case:
Count One charging him with a violation of Title 21, United States Code, Section 846, i.e., attempt to violate Title 21, United States Code, Section 841(a)(1) and 841(b)(1)(B), that is, to knowingly, intentionally and without authority distribute fifty (50) grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance.
R. at 81 (Plea Agreement) (emphases added). The description of the charge in Count One in the plea agreement differs from that in the Superseding Indictment in three respects: (1) it changes the charge from "conspiring to distribute" to "attempting to distribute"; (2) it changes the statutory provision from 21 U.S.C. § 841(b)(1)(A) to 21 U.S.C. § 841(b)(1)(B); and (3) to correspond with the changed statutory provision, it changes the drug quantity contained in the description of the charge from "five hundred grams or more" to "fifty grams or more."
At the plea hearing, the district court read the charge in Count One as it is stated in the Superseding Indictment. In response, Rose pleaded guilty. After Rose pleaded guilty, Vasquez's attorney, Mr. Brooks, pointed out that Vasquez's plea agreement changed the charge from a violation of 21 U.S.C. § 841(b)(1)(A), conspiring to distribute five hundred grams or more of methamphetamine mixture, to a violation of 21 U.S.C. § 841(b)(1)(B), the penalty for fifty grams or more. The Assistant U.S. Attorney, Mr. Laymon, also acknowledged the change. Rose joined in Vasquez's objection regarding the change. The discussion went as follows:
MR. BROOKS [counsel for Vasquez]: Your Honor, our plea agreement says 50 grams, rather than 500 grams, which was the original indictment.
THE COURT: Mr. Laymon?
MR. LAYMON [government counsel]: Judge, as to both Mr. Rose and Mr. Vasquez, the first defendant and the third defendant, they're pleading guilty pursuant to their plea agreements, which stipulate a plea to what would be a lesser included offense, technically, I suppose, but it would be (b)(1)(B) as opposed to (b)(1)(A).... [Rose and Vasquez] would be pleading guilty to 50 grams or more, which is the (b)(1)(B) provision.
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