United States v. Dawn

• Decision Date: 16 November 2016
• Docket Number: No. 15-1136,15-1136
• Citation: 842 F.3d 3
• Parties: United States of America, Appellee, v. James Dawn, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

842 F.3d 3

United States of America, Appellee,

v.James Dawn, Defendant, Appellant.

No. 15-1136

United States Court of Appeals, First Circuit.

November 16, 2016

Robert F. Hennessy and Thompson & Thompson, PC , Springfield, MA, on brief, for appellant.

Mark T. Quinlivan , Assistant United States Attorney, and Carmen M. Ortiz , United States Attorney, on brief, for appellee.

Before Kayatta, Stahl, and Barron, Circuit Judges.

BARRON, Circuit Judge.

James Dawn appeals his convictions for federal firearms offenses on the ground that the District Court, in accepting his guilty pleas, did not conduct a proper inquiry under Rule 11 of the Federal Rules of Criminal Procedure. Dawn also appeals his sentence, arguing that the District Court erred in classifying him as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We affirm both the convictions and the sentence.

I.

Dawn was indicted in March 2014 for dealing in firearms without a license, 18 U.S.C. § 922(a)(1)(A), and for being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1). He initially pled not guilty. In July, however, his counsel, Jaime Zambrana, informed the Magistrate Judge assigned to the case that Dawn intended to change his plea to guilty.

At the change of plea hearing in September, the District Court began by stating that "the purpose of this hearing is to satisfy me that what appears to be your intention to plead guilty is a knowing and voluntary act." The District Court then proceeded to ask Dawn a range of questions concerning his ability to understand the charges against him and to make a decision to plead guilty to them.

At the District Court's direction, the government informed Dawn that he could face a sentence of up to ten years for the felon-in-possession charge, but if he were determined to be an "armed career criminal," he would face a maximum sentence of life imprisonment and a mandatory minimum sentence of fifteen years. That statement was a reference to the ACCA, 18 U.S.C. § 924(e), which applies if a defendant has three previous convictions for a "violent felony or a serious drug offense." The government also informed Dawn that he would face a sentence of up to five years for dealing in firearms without a license.

The District Court next asked Dawn, "So, you understand what the maximum penalties could be in this case, depending on how I resolve the factual matters here?" Dawn replied, "Yes, your Honor." The District Court then stated, "You understand that. So, what you are exposing yourself to is potentially those maximum penalties." Dawn replied, "Yes, your Honor." The District Court went on to describe the rights Dawn would be giving up by pleading guilty, discuss the evidence that could be presented at trial, and ask Dawn to enter a plea. The District Court concluded that Dawn's "decision to plead guilty is a knowing and voluntary act on [Dawn's] part."

Dawn then entered a guilty plea. After entering the guilty plea, Dawn's attorney, Zambrana, moved to continue the sentencing hearing. Zambrana stated that the government intended to seek a sentence under the ACCA. Zambrana alleged, incorrectly, that one of the predicate offenses that the government was relying upon under the ACCA was Dawn's 2007 conviction for possession with intent to distribute a class D substance, in violation of Massachusetts General Laws Chapter 94C, § 32C. Zambrana requested more time to allow Dawn to seek to have this conviction vacated. That motion was heard at the beginning of the scheduled sentencing hearing.

At that hearing, Zambrana spoke in support of the motion to continue sentencing. Zambrana contended that he was in the process of challenging two of Dawn's prior state-law convictions that the government was asserting qualified Dawn as a career offender under the ACCA: first, the 2007 conviction referenced in the motion to continue sentencing, which was not actually classified as an ACCA predicate offense in the presentence report; and second, a conviction for trafficking cocaine, which was classified as an ACCA predicate offense in the presentence report. The District Court did not grant the requested continuance. The District Court explained that the convictions that Zambrana had identified in requesting the continuance were relatively old and that any success that his counsel had in having them vacated could be addressed in a post-sentencing motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure.

The District Court took a brief recess so that Zambrana could explain to Dawn the process for challenging the sentence by filing a Rule 35 motion in the event that his challenges to any prior state conviction on which the sentence relied were successful. After the recess, the District Court confirmed that Dawn had the opportunity to review the presentence report and did not object to it. The District Court sentenced Dawn to 180 months of imprisonment—the mandatory minimum—and 60 months of supervised release. This appeal followed.

II.

Dawn challenges his convictions on the ground that the District Court failed to inquire at the Rule 11 hearing whether he was induced to plead guilty by way of any force, threats, or promises. SeeFed. R. Crim. P. Rule 11(b)(2) (stating that "[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises"). Because Dawn raises this issue for the first time on appeal, we review only for plain error.

United States v. Ortiz–García, 665 F.3d 279, 285 (1st Cir. 2011). We find none.

"In order to establish plain error, a defendant must show that: (1) an error occurred; (2) the error was plain; (3) the error affected the defendant's substantial rights; and (4) the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ " Id.(quoting United States v. Rivera–Maldonado, 560 F.3d 16, 19 (1st Cir. 2009) ). To satisfy the "substantial rights" prong of the test in this context, the defendant must show "a reasonable probability that, but for the error, he would not have entered the plea." Id. at 286 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ).

Dawn contends that the purported Rule 11 violation was clear and obvious, and he contends that this error affected his substantial rights in the following way. Dawn argues that if the District Court had inquired into whether Dawn's decision to plead guilty had been influenced by improper promises, Dawn would have disclosed Zambrana's "unfilled and unfulfillable promise to at least attempt to seek avoidance of the ACCA by collaterally attacking some of Dawn's prior convictions in state court." Dawn contends that, following the disclosure of that "promise," the District Court would have clarified for Dawn that Zambrana's promise to challenge those convictions was an empty one because Zambrana in fact had promised to challenge a conviction that was not actually classified as an ACCA predicate. And, further, Dawn contends, such a clarification by the District Court would have changed Dawn's expectation as to whether he would be subject to the ACCA enhancement and thus affected his decision to plead guilty. Accordingly, Dawn contends that the District Court's alleged error in failing to inquire into whether any promises Dawn received affected his substantial rights.

There may be some question, as the government contends, as to whether the District Court's inquiry in this case was clearly insufficient under Rule 11. SeeUnited States v. Henry, 113 F.3d 37, 41-42 (5th Cir. 1997). But even if we were to assume that the District Court did plainly err in not directly inquiring about whether Dawn's counsel made any promises, Dawn has not shown how, but for such an error, it is probable that he would not have pled guilty. Thus, he cannot satisfy the third prong of the plain error standard. SeeDominguez Benitez, 542 U.S. at 76, 124 S.Ct. 2333.

In this regard, we note that, to support his contention that Dawn's counsel made an unfulfillable promise to him that induced his plea, Dawn points only to his counsel's statements in the criminal proceedings themselves. And those statements, upon scrutiny, provide weak support for his contention.

The first statement Dawn points to is one that Zambrana made in a pretrial conference prior to the Rule 11 hearing. Zambrana stated that he was "looking into some of [Dawn's] prior convictions which have a significant impact on the Guidelines." But this statement is not itself a promise to Dawn by Zambrana, nor is it persuasive...