USA. v. Drew, No. 98-3120

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtKaren LeCraft Henderson; Edwards
Citation200 F.3d 871
Docket NumberNo. 98-3120
Decision Date25 January 2000
Parties(D.C. Cir. 2000) United States of America, Appellee v. Wilbert Jerome Drew, Appellant

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200 F.3d 871 (D.C. Cir. 2000)
United States of America, Appellee
v.
Wilbert Jerome Drew, Appellant
No. 98-3120
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 1999
Decided January 25, 2000

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Appeal from the United States District Court for the District of Columbia(No. 97cr00471-01)

Howard B. Katzoff, appointed by the court, argued the cause for the appellant.

Florence Pan, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney, and John R. Fisher, Assistant United States Attorney, were on brief for the appellee.

Before: Edwards, Chief Judge, Silberman and Henderson, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Opinion filed by Chief Judge Edwards concurring in the judgment.

Karen LeCraft Henderson, Circuit Judge:

Wilbert J. Drew pleaded guilty to one count of possession of a firearm while subject to a court order in violation of 18 U.S.C. 922(g)(8). For the first time on appeal Drew argues that section 922(g)(8) is unconstitutional under the Second and Fifth Amendments to the United States Constitution. Drew also argues that the district court made several sentencing errors: (1) in finding under the United States Sentencing Guidelines (U.S.S.G. or Guidelines) that Drew's relevant conduct included attempted first degree murder; (2) in applying the cross-reference provisions, sections 2K2.1 and 2X1.1, of the Guidelines; (3) in violating his right to due process by sentencing him based on attempted first degree murder supported by hearsay evidence; and (4) in applying the two level enhancement for restraint of victim pursuant to U.S.S.G. 3A1.3. We conclude that, because of his guilty plea, Drew waived his right to challenge the constitutionality of 18 U.S.C. 922(g)(8). We further conclude that the district court properly applied the Guidelines' cross-reference provisions and that Drew's due process challenge to his conviction is meritless. Because we believe the district court improperly applied section 3A1.3's two-level enhancement for restraint of victim, however, we remand for resentencing without the enhancement.

I.

On December 2, 1997 a grand jury returned a single-count indictment charging Drew with violation of 18 U.S.C. 922(g)(8). Two days later the government filed a thirteen count superseding indictment charging inter alia burglary, kid napping and violation of a protective order. The charges arose from Drew's armed forced entry into his estranged wife's house and his subsequent actions. At the time of the offense Drew had been married to Renay Short-Drew for eleven years. He had physically abused her at least four times by "smacking, hitting, punching [and] kicking" her. PSR 4.1 On October 14, 1997 Mrs. Drew petitioned the District of Columbia (District) Superior Court for a civil protection order (CPO) against Drew and obtained a temporary protection order pending a hearing. On October 27, 1997 the Superior Court issued a one-year CPO with standard conditions, using the form used by the Family Division of the Superior Court. The CPO required Drew to vacate the family premises and retrieve his belongings there from with a police escort, ordered Drew to stay at least 100 feet away from his wife and their three children, ordered Drew not to "assault, threaten, harass or physically abuse" his wife or the children in any manner and allowed Drew to contact her only through counsel. Id. Family counseling was also ordered

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and was scheduled to begin on November 19, 1997.

On November 2, 1997 Drew telephoned Mrs. Drew at about 2:30 a.m. Distraught, Drew said that he needed help right away and could not wait until the November 19th family counseling session. Drew told her that the system had failed him, everyone was turning their back on him and he was contemplating suicide. See id. Mrs. Drew suggested he contact their family doctor. See id. When she told him that she intended to hang up, he threatened to do something "drastic." Id. A few minutes later, Drew broke into their house by shattering a window. Mrs. Drew heard the sounds of breaking glass and someone running up the stairs. She locked her bedroom door, grabbed her portable phone and hid in a closet. She dialed 911 and requested help. While she was on the telephone with the emergency dispatcher, Drew broke through the bedroom door and then through the closet door. He pointed a shotgun in her face and said, "Bitch, get up. Get out of this closet." R. Drew Tr. 9. She pleaded with Drew, saying "Please, please don't shoot me. Don't kill me. Don't shoot me with the shotgun." Id. When she attempted to stall by saying that she had to put on her shoes, Drew declared, "You don't need shoes where you are going." A 117. At gunpoint, Drew forced his wife to walk out of the bedroom and into the upstairs hallway. There they met their 19-year-old son, Tamarkus, and their 15-year-old son, Jerral. Still pointing the gun at his wife, Drew said, "Bitch, walk." R. Drew Tr. 10. Drew went down the stairs in front of Mrs. Drew, continuing to point the shotgun at her, and told her again to come downstairs. See A 39. Eventually she walked down the stairs, stopping a few steps from the bottom. Their two sons also walked downstairs, trying to talk to Drew. Drew again complained that he was tired, the system had failed him and he couldn't take it anymore. He seemed "unfocused" and his "eyes were glazed over." Mrs. Drew cried out again, "Please don't shoot me." A 118. At one point, Drew pointed the gun in his wife's face. See R. Drew Tr. 11. He also pulled the trigger of the gun. See Szala Tr. 7, 8. Mrs. Drew heard a "tick" or a "pop" but the gun did not discharge. See R. Drew Tr. 11.2 When the gun did not discharge, Mrs. Drew and her sons jumped on Drew and attempted to take the gun away from him. MPD Officer Paul Szala arrived as they were struggling with Drew and with his assistance they subdued Drew and Szala placed Drew under arrest.

The government and defense counsel entered into plea negotiations. The government initially offered to allow Drew to plead guilty to two charges--Count One (possession of a firearm while subject to a court order in violation of 18 U.S.C. 922(g)(8)) and an Information charging burglary while armed--noting that the Guidelines' base offense level for Count One would "probably be 24." Tr. 5/5/98 at 17. Drew rejected the offer. The government then offered to let him plead guilty to Count One only. Drew first declined and informed the trial court that he no longer wished to be represented by his counsel. After an on the record discussion involving the court, all counsel and Drew, Drew's counsel and Drew agreed to confer again. When the parties appeared in court again, one of Drew's lawyers, Assistant Federal Defender Gregory William Spencer, advised the court that, pursuant to a written plea agreement, Drew wanted to plead guilty to Count One. In exchange for Drew's guilty plea, the government dismissed all other charges against him. The plea agreement reserved the government's right of allocution at Drew's sentencing but provided that the government would not oppose a three-level reduction in Drew's offense level for acceptance of responsibility. Spencer also indicated:

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I believe that I was able to review for him the calculations that we believe would be appropriate in this case. I believe that I was able to discuss with him the calculations that we have tried to foresee that the government may argue, including various reasons for upward departures and various reasons for downward departures.

Tr. 6/2/98 at 28. Before accepting Drew's guilty plea, the district court referred to the proffer of facts and informed Drew that, by pleading guilty, he waived the right to appeal his conviction but retained the right to appeal an illegal sentence. Drew agreed with the factual proffer and stated that he understood he was waiving his right to appeal his conviction. See Tr. 6/2/98 at 42. The court then accepted Drew's guilty plea.

On September 28, 1998 the district court sentenced Drew to 80 months in prison followed by three years of supervised release. In sentencing Drew pursuant to the Guidelines' cross-reference provisions for firearm offenses, U.S.S.G. 2K2.1 and 2X1.1, the court applied the base offense level for attempted first degree murder, added a two-level enhancement for restraint of victim under U.S.S.G. 3A1.3 and allowed a three-level reduction based on acceptance of responsibility, resulting in a total offense level of 27 and a Guidelines range of 70-87 months.

II.

The standard of review applicable to Drew's constitutional challenge to his conviction is discussed infra. We review the district court's application of the Guidelines as follows:"[P]urely legal questions are reviewed de novo; factual findings are to be affirmed unless 'clearly erroneous'; and [the Court] give[s] 'due deference' to the district court's application of the guidelines to facts." United States v. Becraft, 117 F.3d 1450, 1451 (D.C. Cir. 1997) (quotation omitted).

A. Waiver

Drew argues that his conviction should be vacated because the statute under which he pleaded guilty, 18 U.S.C. 922(g)(8), violates the Second and Fifth Amendments to the United States Constitution. The government responds that, by pleading guilty, Drew waived his constitutional challenge." It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Bousley v. United States, 523 U.S. 614, 621 (1998) (quotation omitted). The United States Supreme Court has recognized one exception to the general rule where the defendant's claimed right is "the right not to be haled into court at all upon the felony charges." United States v. Broce, 488 U.S....

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41 practice notes
  • U.S. v. Delgado-Garcia, No. 03-3060.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 23, 2004
    ...were otherwise — waive the pleading defendants' claims of error on appeal, even constitutional claims. See, e.g., United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000). There are two recognized exceptions to this rule. The first is the defendant's claimed right "not to be haled into court......
  • Al Bahlul v. United States, No. 11–1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 12, 2015
    ...unconstitutionality of the statute under which the proceeding is brought does not oust a court of jurisdiction.”); United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000) (noting “the error in labeling a challenge to the constitutionality of a statute a jurisdictional issue”); Cotton, 535 U......
  • U.S. v. Crawford, No. 01-50633.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 21, 2004
    ...and application of those Guidelines to the facts of the case are reviewed de novo." (internal citations omitted)); United States v. Drew, 200 F.3d 871, 880 (D.C.Cir.2000) ("Because the facts on this issue are not significantly in dispute, the issue is primarily a question of law and therefo......
  • Slavek v. Hinkle, No. 1:03CV1439.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 10, 2005
    ...Id. Interestingly, the D.C. Circuit has reached a different, but arguably logical, conclusion in this regard. In United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000), the D.C. Circuit held that a facial constitutional challenge to a statute does not fall within the Blackledge/Menna excep......
  • Request a trial to view additional results
41 cases
  • U.S. v. Delgado-Garcia, No. 03-3060.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 23, 2004
    ...were otherwise — waive the pleading defendants' claims of error on appeal, even constitutional claims. See, e.g., United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000). There are two recognized exceptions to this rule. The first is the defendant's claimed right "not to be haled into court......
  • Al Bahlul v. United States, No. 11–1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 12, 2015
    ...unconstitutionality of the statute under which the proceeding is brought does not oust a court of jurisdiction.”); United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000) (noting “the error in labeling a challenge to the constitutionality of a statute a jurisdictional issue”); Cotton, 535 U......
  • U.S. v. Crawford, No. 01-50633.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 21, 2004
    ...and application of those Guidelines to the facts of the case are reviewed de novo." (internal citations omitted)); United States v. Drew, 200 F.3d 871, 880 (D.C.Cir.2000) ("Because the facts on this issue are not significantly in dispute, the issue is primarily a question of law and therefo......
  • Slavek v. Hinkle, No. 1:03CV1439.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 10, 2005
    ...Id. Interestingly, the D.C. Circuit has reached a different, but arguably logical, conclusion in this regard. In United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000), the D.C. Circuit held that a facial constitutional challenge to a statute does not fall within the Blackledge/Menna excep......
  • Request a trial to view additional results

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