UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KARL KEVIN HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:04-cr-00030-REM-1)
Submitted: May 30, 2007 Decided: August 16, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marjorie Anne McDiarmid, WEST VIRGINIA UNIVERSITY, Morgantown, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Karl Kevin Hill pled guilty to conspiracy to distribute
methamphetamine and marijuana. He was sentenced to the statutory
mandatory minimum sentence of ten years. 21 U.S.C.A.
§ 841(b)(1)(B) (West Supp. 2006). He appeals his conviction and
sentence, and we affirm.
I.
On September 22, 2004, police officers went to Karl Kevin
Hill’s home in search of a fugitive. The officers knew that Hill
was a convicted felon. Sergeant Cunningham knocked on the front
door and announced his presence. When no one responded, he pushed
the door open and stepped into the residence. As he stepped
inside, he was met by Hill, who stated that the fugitive had left
and refused permission to search the house. Cunningham asked
another individual in the house what his name was, and he
identified himself. When Cunningham stated that he too was a
fugitive, the individual fled toward the back of the house.
Cunningham pursued, and during this brief pursuit, he noticed a
rifle in plain view.
While other officers detained the fugitive, Cunningham
arrested Hill for being a felon in possession of a firearm.
Meanwhile, two officers who had walked behind the house smelled the
“chokingly strong” odor of a methamphetamine laboratory coming from
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a trailer behind the residence. They asked Hill for permission to
search his trailer, and Hill said that the trailer did not belong
to him, and instead was owned by his sister. Hill told the
officers where his sister lived, and they traveled to her home to
seek permission to search the trailer. Hill’s sister gave written
consent, stating that she was the owner of the trailer, and the
police officers found an operational methamphetamine laboratory
inside.
Hill moved to suppress items seized during the search of
his home and of his sister’s trailer. The district court
suppressed the items seized from his home, including the firearm,
finding that Cunningham improperly entered Hill’s home without a
warrant or exigent circumstances. The court denied the motion to
suppress the evidence found in the trailer, reasoning that Hill had
no Fourth Amendment interest in the trailer because he denied
ownership or control.
On April 15, 2005, Hill pled guilty to conspiracy to
possess with the intent to distribute marijuana and
methamphetamine. Hill was released pending sentencing to permit
him to cooperate with the Government in hopes of earning a
substantial assistance departure. However, once on release, Hill
made no attempts to assist the authorities.
On February 13, 2006, Hill moved to withdraw his guilty
plea, stating that, while in police custody, he had been denied
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medical assistance for his serious knee injury. Because the
Government had informed him that, if he pled guilty, they would not
oppose his motion for bond, Hill pled guilty in order to be
released from prison and seek medical attention. Thus, he claimed
that his plea was coerced and given under duress.
Hill also moved to reconsider the ruling that the
evidence seized from the trailer was admissible against him. He
argued that, under the new decision in Georgia v. Randolph, 547
U.S. 103, 126 S. Ct. 1515 (2006), he had standing to challenge the
search and his sister lacked actual and apparent authority to
consent. The Government responded, objecting to the relitigation
of any matters not affected by Randolph.
The magistrate judge recommended denying both the motion
to withdraw Hill’s guilty plea and his motion to reconsider.
Regarding the motion to withdraw, the magistrate judge conducted an
analysis of the six-factor test outlined in United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). When discussing the first
factor—whether the defendant has offered credible evidence that his
plea was not voluntary—the magistrate judge noted that there was no
mention of Hill’s medical condition, pain therefrom, or lack of
treatment by Hill, his counsel, or any other person present at the
plea hearing. The magistrate judge also stated as follows:
The undersigned is suspicious of the fact that Hill had
the opportunity to call his former counsel, Sean Murphy,
to testify at the hearing before the undersigned as to
any knowledge Murphy may have had relative to Hill’s
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current claim that he entered a guilty plea to obtain
release to get medical treatment and did not do so.
Instead, Hill asks the undersigned to make a connection
between his pre-existing medical condition, attempts to
get treatment while incarcerated and his getting medical
attention as soon as he was released . . . and his
present claim that his plea was involuntary. To do so,
the undersigned would have to engage in rank speculation.
The magistrate judge further noted that Hill did not take the
stand.
The magistrate judge also addressed another factor —
whether Hill has made a credible assertion of legal innocence — and
considered Hill’s claim that he is legally innocent by virtue of
the application of Randolph, where the Supreme Court held that “a
warrantless search of a shared dwelling for evidence over the
express refusal of consent by a physically present resident cannot
be justified as reasonable as to him on the basis of consent given
to the police by another resident.” 126 S. Ct. at 1526. The
magistrate judge found that the facts of Hill’s case were
significantly different from the facts in Randolph. Specifically,
Hill did not refuse consent to search; instead, he claimed that the
trailer was not his and that the police would need to seek consent
from his sister.
In addition, the magistrate judge rejected Hill’s
contention that his sister lacked “common authority” over the
trailer, sufficient to give consent. The judge considered Hill’s
express disavowal, as well as his sister’s statements that the
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trailer was on her land and that she stored her personal belongings
there.1 The magistrate judge then concluded that Hill’s sister had
common authority to consent to the search and that, therefore, Hill
had failed to credibly assert either his actual or legal innocence.
Thus, the magistrate judge recommended denying Hill’s motion to
withdraw his guilty plea and his motion to reconsider.
The district court adopted the report and recommendation
and ruled that Hill waived standing to challenge the search and
that Hill had not presented “any real evidence of duress.” Thus,
the court denied Hill’s motion to withdraw and his motion for
reconsideration.
Because he had a previous felony drug conviction, Hill
faced a mandatory statutory minimum sentence of ten years
imprisonment. See 21 U.S.C. § 841(b)(1)(B) (2000). At sentencing,
Hill challenged the district court’s conclusion that his previous
Virginia conviction for possession and distribution of marijuana
was a felony offense. The court overruled his objection, and Hill
was sentenced to ten years in prison.2
1
Hill’s sister also stated that the trailer was not titled in
anyone’s name and that she had not been over there for over a year.
2
Hill’s guideline range was 78-97 months’ imprisonment.
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II.
Hill challenges the denial of his motion to withdraw his
guilty plea on two grounds: first, he asserts that the district
court improperly drew negative inferences from his assertion of
attorney-client privilege and the Fifth Amendment, and second, he
claims that his motion to suppress was wrongly decided, thus
demonstrating his innocence. Withdrawal of a guilty plea is not a
matter of right. United States v. Ubakanma, 215 F.3d 421, 424 (4th
Cir. 2000). The defendant bears the burden of showing a “fair and
just reason” for the withdrawal of his guilty plea. 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) (en banc). An appropriately conducted Rule 11
proceeding, however raises a strong presumption that the guilty
plea is final and binding. Id. We consider six factors in
determining whether to permit the withdrawal of a guilty plea:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or otherwise involuntary;
(2) whether the defendant has credibly asserted his legal
innocence; (3) whether there has been a delay between
entry of the plea and filing of the motion; (4) whether
the defendant has had close assistance of counsel; (5)
whether withdrawal will cause prejudice to the
Government; and (6) whether withdrawal will inconvenience
the court and waste judicial resources.
Moore, 931 F.2d at 248. The denial of a motion to withdraw a
guilty plea is reviewed for an abuse of discretion. Ubakanma, 215
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F.3d at 424. A defendant must show prejudice for a district
court’s ruling to constitute an abuse of discretion. United
States v. West, 877 F.2d 281, 288 (4th Cir. 1989).
The only evidence presented by Hill in support of his
motion to withdraw was medical evidence showing that he had a
serious knee injury, that he was not given immediate treatment in
jail, and that once he was released, he immediately sought and was
given treatment. Hill presented absolutely no evidence tying these
facts to his guilty plea. While he was released pending
sentencing, the reason given on the record at his plea colloquy was
that Hill was being given a chance to cooperate in hopes of
securing a departure based on his substantial assistance. Further,
at his plea hearing, Hill testified that he had no impairment
preventing him from fully participating in the hearing, that he had
not received any promises or inducement except those contained in
the plea and cooperation agreements, and that his attorney had not
left anything undone that he thought should be done on his behalf.
Moreover, the record reflects that, while in prison prior to his
plea, Hill sought outside medical treatment and was granted
permission to see a doctor outside the jail. Thus, even if the
magistrate judge’s comments constituted improper inferences, the
court clearly did not abuse its discretion in determining that Hill
had failed to offer credible evidence that his plea was
involuntary.
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Hill next challenges the district court’s denial of his
motion to suppress the evidence found in the trailer. He contends
that (1) his disavowal of the trailer was involuntary and should
have been suppressed as it followed his illegal arrest, and (2) his
sister lacked “common authority” over the trailer. He asserts
that, because he can show that the motion to suppress was
improperly denied, he has made a credible showing of legal
innocence.3
Even if Hill’s disavowal should not bar him from
challenging the subsequent search, he must still show that his
sister lacked “common authority” in order to show that the evidence
should have been suppressed. The Government can justify a
warrantless search by showing permission to search by “a third
party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.”
United States v. Matlock, 415 U.S. 164, 171 (1974). Authority to
consent arises from mutual use of the property by those with joint
access or control, so that a cohabitant would recognize the risk
3
While in general a properly represented defendant who pleads
guilty waives the right to withdraw his guilty plea in order to
pursue Fourth Amendment claims, see Vasquez v. United States, 279
F.2d 34, 36-37 (9th Cir. 1960), here the district court narrowly
revisited the issue after the Supreme Court’s decision in
Georgia v. Randolph, 547 U.S. 103 (2006), and only in the context
of Hill’s motion to withdraw his guilty plea. Because motions to
withdraw guilty pleas are entrusted to the sound discretion of the
trial court, we will review the issue to the extent the district
court examined it.
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that another might allow a common area to be searched. Trulock v.
Freeh, 275 F.3d 391, 403 (4th Cir. 2001). “[T]he exception for
consent extends even to entries and searches with the permission of
a co-occupant whom the police reasonably, but erroneously, believe
to possess shared authority as an occupant.” Randolph, 547 U.S. at
103. “[I]t would be unjustifiably impractical to require the
police to take affirmative steps to confirm the actual authority of
a consenting individual whose authority was apparent.” Id.
Here, Hill told the officers that his sister owned the
trailer and that they had to seek consent from her. He then gave
them directions to her house. While his statements may not
constitute abandonment of his standing to challenge the search,
Hill provides no legal support for the conclusion that the officers
were not entitled to rely on this information in determining
whether the sister had authority to grant consent. Whether Hill’s
statements were true or not, the police officers acted on them and
confirmed their validity when speaking with Hill’s sister.
Specifically, Hill’s sister was found at the address stated by
Hill, and she agreed that she owned the property, stated that she
stored personal items there, and did not state that she lacked
authority to grant consent. Thus, we hold that the police acted
reasonably in relying on Hill’s sister’s consent. See United
States v. Kinney, 953 F.2d 863, 867 (4th Cir. 1992) (holding that
officers acted reasonably in relying on the consent of cohabitant
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to search a locked closet when she produced a key, even though it
turned out that the defendant kept the closet locked and did not
give the cohabitant permission to use it).
Accordingly, the district court properly denied the
motion to suppress the evidence found in the trailer. As such,
Hill has failed to make a credible showing of legal innocence to
support his motion to withdraw his guilty plea.
Further, even assuming that the district court’s findings
regarding duress and the motion to suppress were somehow suspect,
the court’s remaining findings would still support the denial of
the motion. Specifically, the court found that Hill delayed for
nearly ten months after his guilty plea before filing his motion to
withdraw. In fact, his challenge was not made until Hill found out
that the Government was not going to make a motion for a
substantial assistance departure. Thus, although he would have
known that he had been coerced to plead guilty at the time of his
plea, he delayed informing the court of his reasons until it proved
advantageous to him. Further, Hill had close assistance of counsel
throughout his proceeding, resulting in a partially successful
motion to suppress and a successful motion for outside medical
care. In addition, it would be a waste of judicial resources to
permit the withdrawal of the plea after such a long delay.
Finally, even if the motion to suppress was improperly
granted, Hill has still not made a credible showing of innocence.
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The factual basis given at his plea hearing, with which Hill
agreed, showed that others present at the time of Hill’s arrest had
also been involved in making methamphetamine and that witnesses had
admitted to being involved with Hill and his methamphetamine lab.
In addition, the presentence report states that five witnesses
testified in front of the grand jury about Hill’s methamphetamine
business, each of which was also part of the business. They
testified in detail about the regularity of Hill’s business, the
jobs of the other members of the conspiracy, and how firearms were
regularly traded for methamphetamine. Hill offered no evidence
disputing the factual basis which was presented at his plea
colloquy, and he proffers no challenge to the Government’s
potential witnesses. Thus, regardless of the correctness of the
decision on the motion to suppress, Hill failed to credibly assert
his legal innocence. Further, on appeal, Hill does not dispute
that his delay was intentional and lengthy, that he had close
assistance of counsel, or that it would be a waste of judicial
resources to permit withdrawal of his plea.
Based on the foregoing, we find that Hill was not
prejudiced by any errors of the district court in deciding his
motion to withdraw his guilty plea. Accordingly, the district
court did not abuse its discretion in denying Hill’s motion.
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III.
Hill challenges the calculation of his statutory
mandatory minimum sentence, arguing that he did not have a prior
drug felony sufficient to trigger the enhanced minimum.
Specifically, Hill was convicted of possession and distribution of
more than half an ounce, but less than five pounds, of marijuana.
Under Virginia law, the conviction was a Class 5 felony, punishable
by not less than one year nor more than ten years in prison. Va.
Code Ann. §§ 18.2-10, 18.2-248.1(a)(2) (Supp. 2004). However,
“[i]f such person proves that he gave, distributed or possessed .
. . marijuana only as an accommodation to another individual and
not with intent to profit . . . he shall be guilty of a Class 1
misdemeanor.” Va. Code Ann. § 18.2-248.1. Hill was only sentenced
to one year on this offense. Thus, he contends that it was
possible that he was convicted only of a misdemeanor and that,
therefore, the enhancement was improper.
We have held that a “felony drug offense” under § 841(b)
is defined in 21 U.S.C.A. § 802(44) (West Supp. 2006) to mean “an
offense that is punishable by imprisonment for more than one year
under any law . . . that prohibits or restricts conduct relating to
. . . drugs.” United States v. Burgess, 478 F.3d 658, 662 (4th
Cir. 2007). Thus, the issue is not whether the crime is classified
as a misdemeanor under state law or what the defendant’s actual
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prior sentence was, but rather whether the prior conviction’s
maximum possible sentence was over a year. Id.
Here, the district court concluded that Hill was
convicted of a crime punishable by over one year. The district
court correctly determined that, even if Hill was found to have
distributed drugs as an accommodation rather than for profit (Hill
presents no evidence that this is true), he was still convicted of
a “prior drug felony” under the federal statute, because the
offense was potentially punishable by over a year in prison.
Virginia state law also supports this conclusion. See Winston v.
Commonwealth, 434 S.E.2d 4, 6 (Va. App. 1993) (accommodation
statute provides for mitigation of punishment); Stillwell v.
Commonwealth, 247 S.E.2d 360, 365 (Va. 1978) (“The provisions of
§ 18-248(a), which deal with the reduced penalty contingent upon
proof of an accommodation gift distribution, or possession of
marijuana operate only to mitigate the degree of criminality or
punishment, rather than to create two different substantive
offenses.”); Gardner v. Commonwealth, 225 S.E.2d 354, 356 (Va.
1976) (distribution for accommodation creates two defined
gradations of punishment, not two separate offenses). Thus, the
district court properly calculated Hill’s sentence.
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Accordingly, we affirm Hill’s conviction and sentence.4
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
In his reply brief, Hill attempted to raise new claims.
However, these claims are barred by his failure to raise them in
his opening brief. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.
2001).
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