UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4359
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN FITZGERALD JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-03-40; CR-04-15)
Submitted: August 18, 2006 Decided: September 15, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Helen E. Phillips, Stanardsville, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Fitzgerald Jackson pleaded guilty in the Western
District of Virginia to one count of conspiracy to distribute and
possess with intent to distribute 500 grams or more of cocaine,
fifty grams of more of crack cocaine, and an unspecified quantity
of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).
Jackson was also indicted on one count of possession of a firearm
after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g) (2000), by the grand jury in the Western District of
Pennsylvania. This indictment was transferred to the Western
District of Virginia pursuant to Fed. R. Crim. P. 20. Jackson was
ultimately sentenced by the district court for the Western District
of Virginia to 262 months of imprisonment on the drug conspiracy
count, and a concurrent term of 180 months of imprisonment on the
felon-in-possession count. Jackson timely appealed, and counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967). In the Anders brief, counsel states that there are no
meritorious issues for appeal but suggests that Jackson’s sentence
is unconstitutional. In his pro se supplemental brief, Jackson
raises five allegations of error in the determination of his
sentence.
Upon our review of the record, we directed the parties to
file supplemental briefs addressing whether Jackson in fact pleaded
guilty to the count in the indictment from the Western District of
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Pennsylvania. The parties have now filed second supplemental
briefs, in which they agree that Jackson never pleaded guilty to
the charge contained in this indictment, and that remand is
required. The Government has also moved to file a supplemental
appendix.
Jackson did not object to the entry of a judgment of
conviction or to his sentence on the felon-in-possession count from
the Western District of Pennsylvania. We therefore review the
district court’s failure to hold a guilty plea hearing pursuant to
Fed. R. Crim. P. 11 for plain error. United States v. Vonn, 535
U.S. 55, 58-59 (2002). The Government concedes that the district
court’s failure to hold a Rule 11 hearing was error that was plain
and that affected Jackson’s substantial rights.
The procedures governing a guilty plea provide that
“[b]efore the court accepts a plea of guilty or nolo contendere,
the defendant may be placed under oath, and the court must address
the defendant personally in open court.” Fed. R. Crim. P.
11(b)(1); see also United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991) (“In reviewing the adequacy of compliance with Rule 11,
this Court should accord deference to the trial court’s decision as
to how best to conduct the mandated colloquy with the defendant.”).
We agree that the entry of a judgment reflecting that Jackson was
convicted of a crime for which he neither pleaded guilty nor
received a jury trial was error that was plain, and that affected
his substantial rights. Although Jackson received a concurrent
sentence on the firearm count contained in the Pennsylvania
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indictment, the fact of an improper conviction prejudices his
substantial rights. Rutledge v. United States, 517 U.S. 292,
301-03 (1996).
In accordance with Anders, we have reviewed the record in
this case and have found no other meritorious issues for appeal.
We therefore affirm Jackson’s conviction on the drug conspiracy
count contained in the indictment returned in the Western District
of Virginia. We vacate Jackson’s conviction on the
felon-in-possession count contained in the indictment transferred
from the Western District of Pennsylvania, and vacate the
sentence.* We remand to the district court for resentencing and
such other proceedings as may be appropriate. United States v.
Khan, 822 F.2d 451, 454-55 (4th Cir. 1987).
We grant the Government’s motion to file a supplemental
joint appendix, but deny Jackson’s counsel’s motion to withdraw
from representation. 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 IN PART,
VACATED IN PART, AND REMANDED
*
In light of this disposition, we find it unnecessary to
address the allegations of sentencing error in the Anders brief or
Jackson’s pro se supplemental brief.
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