US v. Keith Jackson, No. 09-5000 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5000 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEITH LAUCHON JACKSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. James A. Beaty, Jr., Chief District Judge. (1:08-cr-00272-JAB-1) Submitted: March 31, 2011 Decided: April 13, 2011 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles R. Brewer, Asheville, North Carolina, for Appellant. John W. Stone, Jr., Acting United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Keith Lauchon Jackson pled guilty pursuant to a plea agreement to conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951(a) (2006), and two counts of carry and use, by brandishing and discharging, a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii), (iii), (C)(i) (2006). He received a total sentence of 650 months imprisonment. On appeal, in Jackson accepting argues his guilty rights, because he guilty; and (2) that (1) plea, did the in not the district violation knowingly Assistant United of and court his erred Due Process voluntarily States plead Attorney made improper statements at sentencing that resulted in prosecutorial misconduct. We affirm. Jackson first argues that his guilty plea was not knowingly and voluntarily entered and, therefore, the district court erred in accepting it, in violation of his Due Process rights. Because Jackson did not move in the district court to withdraw his guilty plea, the Fed. R. Crim. P. 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002). To establish plain error, Jackson must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. United States v. Massenburg, 2009) 564 F.3d 337, unpreserved Rule 11 error). 342-43 (4th Cir. (reviewing The decision to correct the error 2 lies within our discretion, and we exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. quotation marks omitted). showing plain error. Id. at 343 (internal The defendant bears the burden of Id. Absent compelling evidence to the contrary, the truth of sworn statements made conclusively established. during a Rule 11 colloquy is United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (holding that a defendant s declaration at the Rule 11 hearing carr[ies] a strong presumption of verity ); United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991) (concluding that a defendant s statements at a Rule 11 hearing that he was neither coerced nor threatened were strong evidence of the voluntariness transcript of the of Rule his plea ). 11 hearing We in have light reviewed of the Jackson s arguments on appeal and we conclude that his plea was knowing and voluntary and that the court did not plainly err in accepting the plea. Jackson next argues the Assistant U.S. Attorney made improper and prejudicial remarks at sentencing that amounted to prosecutorial misconduct. prosecutor robbery improperly charges Specifically, Jackson complains the referenced pending against 3 a murder Jackson. charge The and other prosecutor, Jackson argues, in fact highlighted for the court the presence in the courtroom of the mother of the store clerk who was shot and killed during one of the robberies, noting that Jackson engaged in ten additional robberies thereafter. To succeed on a claim of prosecutorial misconduct, Jackson must prove that the prosecution s conduct was in fact improper, and that he was deprived of a fair trial because of the prejudicial conduct. 191 (4th Cir. 2007). United States v. Allen, 491 F.3d 178, Because Jackson did not raise this claim in the district court, we again review for plain error. See United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Assuming without deciding the prosecutor s statements were error, we find that the statements did not prejudice Jackson. We therefore find no plain error. Accordingly, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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