US v. Clifton Barnes, No. 09-4854 (4th Cir. 2011)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4854 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CLIFTON BARNES, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:05-cr-00256-FDW-1) Submitted: September 30, 2011 Decided: October 26, 2011 Before WILKINSON, DAVIS, and WYNN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR., Monroe, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clifton Barnes appeals from his conviction and resulting 262-month sentence after pleading guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (2006), and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C) (2006). (ER 212). Barnes counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that in his view, there are no meritorious issues, but raising the issue of whether the district court erred in denying Barnes motion to withdraw his guilty plea. We conclude that the court did not err in denying Barnes motion to withdraw as to the possession with intent to distribute count, and affirm that conviction. We reverse Barnes felon in possession of a firearm conviction, and vacate the sentence and remand for resentencing in light United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 of (4th Cir. Aug. 17, 2011). Barnes moved to withdraw his guilty plea after the presentence report (PSR) was prepared showing that he qualified as a career offender and citing the statutory maximum for the possession with intent to distribute cocaine base count was life imprisonment. Because of an error in the superseding indictment, which did not specify drug quantity, the statutory maximum was reduced from life to thirty years. 2 The court held a hearing on the motion to withdraw and denied the motion. Prior to sentencing, the Government filed a Notice of Intention to Seek Enhanced Penalties Title 21 U.S.C. § 851 noting Barnes had been previously convicted in 1995 and 2000 in North Carolina state court of felony sell/deliver cocaine. possession of cocaine with intent to These are the same convictions that were relied on as predicate offenses for the felon in possession of a firearm count and for the career offender Guideline. At sentencing, counsel filed a general objection to the entire PSR, and the court permitted Barnes to discuss each paragraph objected to to which the he use objected. of the Among North other Carolina things, Barnes convictions to increase his sentence based on the career offender enhancement because the months. sentences he received were not The court denied the objection. more than twelve The court sentenced Barnes to 120 months on the felon in possession of a firearm count and 262 months for possession with intent to distribute cocaine base, to be served concurrently. At the time of Barnes indictment and conviction, this court determined whether a prior conviction qualified as a felony for purposes of § 922(g)(1) by considering the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. States v. Harp, 406 F.3d 242, 3 246 (4th Cir. 2005). United While Barnes appeal was pending, however, Harp was overruled by the en banc decision in Simmons. *3. Simmons held that a See Simmons, 2011 WL 3607266, at prior North Carolina offense was punishable for a term exceeding one year only if the particular defendant before the court had been eligible for such a sentence under the applicable statutory scheme, taking into account his criminal history and the nature of his offense. Id. at *8; see also N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009) (setting forth North Carolina s structured sentencing scheme). Under Simmons, it does not appear that Barnes prior North Carolina convictions were crimes punishable by imprisonment for terms exceeding one year for purposes of the federal felon-in-possession statute. court record on appeal. We do not have the state However, in light of Barnes 5-6 and 6-8 month sentences, under the North Carolina sentencing table, it appears that Barnes could not have received a sentence of more than twelve months. See N.C. Gen. Stat. § 15A-1340.17(c), (d). Accordingly, we vacate Barnes conviction and sentence on the felon in possession of a firearm count and remand for further proceedings. Because these convictions served as the 4 basis for the § 851 information and career offender status, 1 we also vacate the sentence for the drug offense and remand for resentencing. Barnes counsel questions whether the district court abused its discretion in denying Barnes motion to withdraw his guilty plea, but ultimately concludes that the court did not err in denying the motion. Barnes also raises this issue in his pro se informal brief, arguing that he should have been permitted to withdraw challenge his the plea because motion he to thought suppress he would ruling be and able that to his understanding was that he would not receive a sentence above 188 months. This motion to court withdraw reviews a a guilty district plea for court s abuse denial of of a discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant has no absolute right to withdraw a guilty plea. United States v. Bowman, 348 F.3d (internal quotation marks omitted). 408, 413 (4th Cir. 2003) Once the district court has accepted a defendant s guilty plea, it is within the court s discretion whether to grant a motion to withdraw it. States v. Battle, 499 F.3d 315, 1 319 (4th Cir. 2007). United The Barnes contested the applicability of the career offender status in his pro se informal brief. 5 defendant bears the burden of showing a fair and just reason for withdrawing his guilty plea. Battle, 499 F.3d at 319. Fed. R. Crim. P. 11(d)(2)(B); [A] fair and just reason . . . is one that essentially challenges . . . the fairness of the Rule 11 proceeding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). [R]eversal is warranted only if the plea proceedings were marred by a fundamental defect that inherently resulted in a complete miscarriage of justice, or in omissions inconsistent with rudimentary demands of fair procedure. allow a defendant to must conduct the Ubakanma, 215 F.3d at 425. When withdraw a considering guilty plea, whether the to trial court six-factor analysis announced in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Under Moore, a district court considers: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. Id. Although all the factors in Moore should be given appropriate weight, the key to determining whether a motion to 6 withdraw should be granted is whether the Rule 11 hearing was properly conducted. Bowman, 348 F.3d at 414; United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). scrutinizes the Rule 11 colloquy and This court closely attaches a strong presumption that the plea is final and binding if the Rule 11 Lambey, 974 F.2d at 1394. proceeding is adequate. Here, the district court substantially complied with the mandates of Rule 11 in accepting Barnes guilty plea. Therefore, the plea is presumed to be final and binding. Moreover, Barnes has failed to establish the existence fair and just reason for withdrawing the plea. Id. of a See Fed. R. Crim. P. 11(d)(2)(B). Because, of the six Moore factors, the first two of whether the plea defendant is consider, we discretion in was knowing innocent conclude denying are the and the voluntary most district Barnes and whether the important factors to abuse its At the court motion to did not withdraw. hearing, Barnes claimed that he thought the maximum sentence would be 188 months. In addition, he thought that even though he was pleading guilty he would be able to raise a suppression issue on appeal. his appellate challenge Barnes pleaded straight up and maintained rights; antecedent however, this constitutional conviction. 7 does not claims entitle related him to to his The motion to district withdraw court with held a by testimony involved at the scene of arrest. lengthy Barnes hearing and a on the detective The court properly decided that the guilty plea was voluntary and knowing even though the sentencing range was 188-235 months instead of the maximum of 188 months alleged by Barnes. 2 The court held that, even if an estimated sentence of 188 months was what Barnes understood, it was sufficient court told for Barnes the defendant that it was to an be informed estimate of because his the sentence. Further, at the hearing, Barnes admitted that he remembered the Assistant U.S. Attorney saying that he would recommend 188, the low end of the Guidelines range. At the Rule 11 hearing, Barnes counsel stated that the sentence would be 188 months to two hundred something. demonstrates that the The transcript of the Rule 11 hearing AUSA stated that Barnes is a career offender, and that 188 would be the low end of the Guidelines range. Barnes also acknowledged at the Rule 11 hearing that the court had discretion to impose a higher sentence. The court also found that Barnes had not met his burden to prove factual innocence since, at the time officers executed a search warrant at his residence, he was found covered 2 This was the applicable Guidelines range before the court struck the three-level reduction for acceptance of responsibility. 8 in cocaine paste and running out of the residence. The officers found cocaine, scales, crack, pyrex containers containing crack, an amount of crack mixture in a bowl in the microwave, and smudges of crack paste on the kitchen counter, doorway, and out the door that Barnes ran through. Barnes claimed that he did not know what the paste was or how it got on him. However, no one else in the residence had crack paste or residue on them. We conclude the court did not err in finding that Barnes had not made a credible showing of his legal innocence. In consideration of these findings and reviewing the other Moore factors, we conclude that the court did not abuse its discretion in denying the motion. In accordance with Anders, we have reviewed the record in this case and have found no other meritorious issues for appeal. We therefore affirm in part, vacate in part, and remand. We deny Barnes motions to produce grand jury records and a for discovery. writing, of transcript at Government expense and motion for This court requires that counsel inform Barnes, in the right to petition United States for further review. the Supreme Court of the If Barnes requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Barnes. 9 We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
