Usa. v. General

• Decision Date: 24 January 2002
• Docket Number: 4,00-4591
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENJAMIN GENERAL, a/k/a Bar-Kim, Defendant-Appellant.UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee v BENJAMIN GENERAL, a/k/a Bar-Kim, Defendant-Appellant

No. 00-4591

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 28, 2001

Decided: January 24, 2002

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CR-99-68-H)

Before WILKINSON, Chief Judge, and WIDENER and WILLIAMS, Circuit Judges.

Affirmed in part and dismissed in part by published opinion. Judge Williams wrote the opinion, in which Chief Judge Wilkinson and Judge Widener joined.

COUNSEL ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, L.L.P., Cary, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, North Carolina, for Appellee.

OPINION

WILLIAMS, Circuit Judge:

On May 18, 1999, a grand jury in the Eastern District of North Carolina indicted Benjamin General for three counts arising from his involvement in a drug trafficking ring. Pursuant to a written plea agreement, General pleaded guilty. General challenges the validity of his guilty plea and his sentence on several grounds. For the reasons that follow, we affirm his conviction and dismiss General's challenges to his sentence.

I.

General and his two brothers, Danny Kennedy General and Tommy Carnel General, were arrested for their participation in a drug trafficking network in Fayetteville, North Carolina that spanned approximately ten years. General was charged with one count of conspiracy to distribute and to possess with intent to distribute cocaine base, cocaine powder, heroin, and marijuana, in violation of 21 U.S.C.A. S 846 (Count One); and two counts of using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C.A. S 924(c)(1) and 18 U.S.C.A. S 2 (Counts Two and Three).

On August 24, 1999, General pleaded guilty to Counts One and Three in exchange for the Government's agreement to drop Count Two. The district court accepted General's plea and approved the plea agreement.

On August 8, 2000, the district court sentenced General to 235 months imprisonment on Count One and 60 months imprisonment on Count Three, to be served consecutively. On August 15, 2000, General filed a notice of appeal to this Court.

On appeal, General raises several challenges to the validity of his guilty plea and to his sentence. We address each challenge in turn.

II.

General first argues that because the indictment did not contain drug quantity and the district court did not inform him that the Government would be required to prove drug quantity beyond a reasonable doubt, his plea is involuntary and, thus, constitutionally invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000). Typically, we review the voluntariness of a guilty plea de novo. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995). Here, however, because General failed to challenge the indictment or otherwise question the nature of his offense before the district court, we review for plain error. See United States v. Dinnall, 269 F.3d 418 (4th Cir. 2001). We may notice an error not preserved by a timely objection only if the defendant establishes "that error occurred, that the error was plain, and that the error affected his substantial rights." United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998). Even when a defendant satisfies these standards, "correction of the error remains within our sound discretion, which we should not exercise . . . unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks omitted) (alteration in original).

This Circuit has made clear that we look to the sentence that actually was imposed to determine whether Apprendi has been violated. In Promise, we held that an indictment that does not include drug quantity properly charges an offense under S 841, but that the penalty cannot exceed that attributable to an offense for an unspecified quantity of the drug type alleged in the indictment. United States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (Wilkins, J., joined by Williams and Traxler, JJ.) ("We conclude that the error was not in Promise's conviction. . . . Promise was properly charged with conspiring to violate 21 U.S.C.A. S 841. . . . The problem, therefore, lies with Promise's sentence."); id. at 188-89 (Motz, J., joined by Widener, Michael, and King, JJ., concurring in part and dissenting in part, and dissenting in the judgment) ("[A]lthough the government presented the grand jury with an indictment containing only the elements necessary to charge [the defendant] with a violation of S 841(b)(1)(C), the district court sentenced him to the more serious crime defined in S 841(b)(1)(A)." (emphasis added)); United States v. Cotton, 261 F.3d 397, 404 (4th Cir. 2001) (noting that this Court determines the offense under S 841 by reference to the sentence imposed), cert. denied, 2002 WL 10623 (U.S. Jan. 4, 2002) (No. 01-687). General properly was charged with the offense of conspiring to distribute an unspecified quantity of cocaine base, cocaine powder, heroin, and marijuana, and his 235 month sentence is less than the statutory maximum for his offense. See 21 U.S.C.A. S 841(b)(1)(C) (West 1999). The failure to include drug quantity in the indictment does not invalidate General's guilty plea because drug quantity is not an element of the offense for which he was sentenced. Accordingly, General cannot demonstrate that either his indictment or the district court's explanation of the charges against him was erroneous, much less plainly erroneous.¹

III.

General next argues that his five-year supervised release term violates Apprendi, contending that S 841(b)(1)(C) allows for a maximum supervised release term of three years. General has misread S 841(b)(1)(C), which clearly provides for a minimum supervised release term of three years, not a maximum. Because General's fiveyear supervised release term does not exceed the statutory range allowable without regard to drug quantity, Apprendi is inapplicable. Indeed, we rejected an identical claim in United States v. Pratt, 239 F.3d 640, 648 (4th Cir. 2001). Accordingly, we affirm General's supervised release term.

IV.

General argues that the district court committed reversible error by failing to advise him during the plea colloquy about the five year mandatory minimum sentence applicable to his firearm charge. See 18 U.S.C.A. S 924(c) (West 2000) (providing a five year mandatory minimum for carrying a firearm during and in relation to a drug trafficking offense). As General notes, the district court advised General of the statutory maximums for each count but did not advise him of the statutory mandatory minimums for his firearm offense. Rule 11(c)(1) requires the district court to inform the defendant of a statutory mandatory minimum sentence before accepting a guilty plea. Fed. R. Crim. P. 11(c)(1) ("Before accepting a plea of guilty . . . the court must . . . inform the defendant of, and determine that the defendant understands . . . the mandatory minimum penalty provided by law . . . ."). Because General did not seek withdrawal of his guilty plea on this ground in the district court, the violation of Rule 11(c)(1) is subject to plain error review. United States v. Martinez, No. 004245, ___ WL ___ (4th Cir. Jan. 17, 2002). The district court's noncompliance with Rule 11(c)(1) satisfies the first two prongs of plain error review; thus, we turn to whether the error affected General's substantial rights. Id.

In United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995), we established an analytical framework for evaluating whether the district court's failure to advise the defendant of a statutory mandatory minimum affected the defendant's substantial rights:

The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant's knowledge by compliance with Rule 11. Finally, the court must determine how the additional or corrected information would have likely affected the defendant's decision.

Id. Applying this framework to General's claim, had the district court recited the mandatory minimum during the plea hearing, it simply would have corroborated information already available to General in his plea agreement. When explaining the firearm count, the plea agreement sets forth "the charge, code section, elements, and applicable penalties" and plainly states as follows: "Minimum term of imprisonment: Five years." (J.A. at 17-18.) Thus, the plea agreement provides, in unambiguous and simple terms, all of the information that would have been provided by the district court's compliance with Rule 11(c)(1). Cf. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991) (holding that a Rule 11 violation does not affect substantial rights if the defendant obtains the omitted information from the plea agreement).

Importantly, General does not contend that he did not understand the statutory mandatory minimum sentence as provided in the plea agreement and, therefore, that the district court's recitation of the mandatory minimum would have aided his understanding of the mandatory minimum. Instead, General asserts that the plea agreement does not cure the district court's error because the information in the plea agreement was incomplete, in that it did not advise him that his sentence for the firearm offense would be required to run consecutively to his sentence for the cocaine trafficking offense. Rule 11, however, does not require a district court to inform the defendant of mandatory consecutive sentencing. See, e.g., United States v. Ospina, 18 F.3d 1332, 1334 (6th Cir. 1994) ...