US v. Keith Frazier, No. 13-4389 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4389 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEITH EDWARD FRAZIER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:11-cr-00113-F-1) Submitted: April 29, 2014 Decided: May 28, 2014 Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Keith Edward Frazier, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal grand jury indicted Keith Edward Frazier on one count of Hobbs Act robbery, and aiding and abetting, 18 U.S.C. §§ 1951, 2 (2012) ( Count One ); one count of armed bank robbery, and aiding and abetting, 18 U.S.C. §§ 2113(a), (d), 2 (2012) ( Count Three ); and two counts of using or carrying a firearm during aiding and ( Counts and in abetting, Two and relation 18 Four ). to U.S.C. a crime him consecutive to Without sixty-four eighty-four a months months violence, §§ 924(c)(1)(A), plea pleaded guilty to Counts Three and Four. 1 sentenced of on and 2 (2012) agreement, Frazier The district court on Count Three Count Four, for and a a total sentence of 148 months imprisonment. On appeal, 2 Frazier contends that his guilty plea to the § 924(c) offense was not knowing and voluntary because the district court failed to correctly mandatory minimum sentence he faced. advise him about the Furthermore, he argues that the district court improperly imposed an enhanced sentence under § 924(c)(1)(A)(ii). For the reasons that follow, 1 we Frazier proceeded to trial on Counts One and Two and the jury acquitted him on both counts. 2 Frazier has elected to proceed pro se on appeal. 2 affirm Frazier s convictions but vacate the sentence and remand for resentencing on Count Four. Rule 11 of the Federal Rules of Criminal Procedure requires that, prior to accepting a guilty plea, a trial court, through colloquy with the defendant, must determine that the defendant s guilty plea is knowing and voluntary. v. Vonn, 535 U.S. 55, 58 (2002). United States Because Frazier is asserting for the first time on appeal that the district court improperly advised § 924(c) him regarding conviction, the our mandatory review is minimum for penalty plain for error. his United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009); see also United States v. Mescual-Cruz, 387 F.3d 1, 6-7 (1st Cir. 2004) (reviewing claim not raised in motion to withdraw before district court for plain error). To establish plain error, Frazier must show: (1) an error was made; (2) the error affects substantial rights. is plain; and (3) the error Massenburg, 564 F.3d at 342-43. The decision to correct the error lies within our discretion, and we exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 343 (internal quotation marks and citations omitted). Before accepting a guilty plea, a district court is required under Rule 11(b)(1)(I) to ensure that the defendant 3 understands any applicable mandatory minimum penalty. Crim. P. 11(b)(1)(I). Fed. R. To satisfy this obligation, the court must clearly advise the defendant of the applicable minimum penalty. United States v. Good, 25 F.3d 218, 223 (4th Cir. 1994). Prior to accepting Frazier s guilty plea, the district court advised Frazier about the minimum and maximum sentences he faced on each count in the indictment, including Counts Two and Four--the § 924(c) offenses. The court informed Frazier that he faced a mandatory minimum sentence of twenty-five years on Count Four. Although this was the maximum mandatory minimum exposure Frazier faced on Count Four if he had also been convicted on Count Two, see 18 U.S.C. § 924(c)(1)(C)(i) (twenty-five year mandatory § 924(c) exposure minimum convictions), on Count sentence Frazier s Four was for mandatory as little subsequent minimum as sentencing five years imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i) (establishing five year mandatory minimum sentence for first § 924(c) violation without aggravating factors). We assume without deciding that Rule 11 requires a district court to alert a defendant as to all possible mandatory minimum sentences and that Frazier therefore can meet his burden with respect to the first two requirements of the plain error standard. Cf. United States v. Goins, 51 F.3d 400, 404 (4th 4 Cir. 1995) (rejecting, in dicta, the government s argument that enumerating all possible minimum sentences onerous burden on the district court). show that the error affected would impose an But Frazier still must his substantial rights. Specifically, in this context, he must demonstrate that he would not have pleaded guilty but for the error. United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Frazier has not met his burden. Frazier filed three challenged motions guilty withdraw plea at the his guilty plea and again hearing. But Frazier never raised the Rule 11(b)(1)(I) error in the district court. his to sentencing Frazier pleaded guilty to Count Four when he was under the impression that he faced at least twenty-five years in prison for this offense. He cannot now credibly assert that he would not have pleaded guilty had he been informed that his sentencing exposure on Count Four was in fact as low as five years. burden Accordingly, we conclude that Frazier has not met his of showing that any error in advising him about his mandatory minimum sentencing exposure affected his substantial rights. We therefore reject his challenge to his guilty plea. Next, Frazier argues that the district court improperly sentenced him to seven years imprisonment on Count Four based mandatory on its minimum erroneous determination applied. We 5 review that a a seven-year sentence for reasonableness, standard. court applying a deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). must ensure that the district court The committed no significant procedural error, including improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors, and inadequate explanation for the chosen sentence. Id. at 51; see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In assessing Guidelines calculations, we review factual findings for clear error, legal conclusions de novo, and unpreserved arguments for plain error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). Here, calculations the in district the court presentence adopted report. the Citing sentencing 18 U.S.C. § 924(c)(1)(A)(ii), the probation officer concluded that Frazier faced a mandatory minimum sentence of seven years on Count Four, consecutive to the sentence imposed on Count Three. Thus, pursuant to U.S. Sentencing Guidelines Manual § 2K2.4(b) (2012), the court sentenced Frazier to eighty-four months (seven years) on Count Four. See USSG § 2K2.4(b) (where the defendant is convicted of a § 924(c) offense, the Guidelines sentence is the statutory mandatory minimum). The offense, minimum without § 924(c)(1)(A)(i). statutory enhancements, Section penalty is five for a years. 924(c)(1)(A)(ii) 6 § 924(c)(1)(A) 18 U.S.C. provides an enhanced penalty when the firearm is brandished. Brandishing, however, is an element of the offense; accordingly, it must be admitted by the defendant or proven beyond a reasonable doubt in order to increase a defendant s mandatory minimum sentence. Alleyne v. United States, 133 S. Ct. 2151, 2155, 2163-64 (2013) (holding that any fact that increases the statutory mandatory minimum is an element of the offense and must be submitted to the jury and found beyond a reasonable doubt); United States v. Strayhorn, 743 F.3d 917, 926 (4th Cir. 2014) (applying Alleyne to sentencing enhancement § 924(c)(1)(A)(ii)). for brandishing under Frazier was not charged with, nor did he admit to, brandishing. We therefore conclude that the district court plainly erred in imposing an enhanced penalty on Frazier pursuant to § 924(c)(1)(A)(ii). 3 For these reasons, we vacate Frazier s sentence on Count Four and remand for resentencing on that count in light of Alleyne and Strayhorn. other respects. We affirm the criminal judgment in all We dispense with oral argument because thefacts and legal contentions are adequately presented in the materials 3 Although the Supreme Court decided Alleyne after Frazier was sentenced, the rule it established nevertheless applies to this case. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ( [A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break with the past. ). 7 before this court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 8

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