PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 05-4757
TERRANCE L. BATTLE, a/k/a Lemont
Battle,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, Chief District Judge.
(CR-04-179)
Argued: May 23, 2007
Decided: September 5, 2007
Before NIEMEYER and GREGORY, Circuit Judges,
and David C. NORTON, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Norton wrote the opinion, in
which Judge Niemeyer joined. Judge Gregory wrote a dissenting
opinion.
COUNSEL
ARGUED: Matthew Anthony Victor, VICTOR, VICTOR & HEL-
GOE, L.L.P., Charleston, West Virginia, for Appellant. Miller A.
Bushong, III, Assistant United States Attorney, OFFICE OF THE
2 UNITED STATES v. BATTLE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appel-
lee. ON BRIEF: Charles T. Miller, Acting United States Attorney,
Charleston, West Virginia, for Appellee.
OPINION
NORTON, District Judge:
Appellant entered a guilty plea on a single charge of possessing a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a
thorough plea colloquy, the district court stated, "Your plea of guilty
is provisionally accepted pending receipt of a presentence investiga-
tion." J.A. 205 (emphasis added). Appellant subsequently moved to
withdraw his guilty plea under Federal Rule of Criminal Procedure
11(d). The district court denied the motion, reasoning that appellant
failed to show a "fair and just reason" for withdrawal. Appellant
argues the district court erred because he had an unconditional right
to withdraw the plea under Rule 11(d)(1) because the court had not
yet accepted the guilty plea. For the reasons set forth below, we
affirm the district court’s denial of the motion to withdraw.
Appellant also contends the district court committed a number of
errors in imposing a 120-month term of incarceration, a sentence at
the bottom of the Guidelines range. Specifically, appellant argues the
district court applied a four-level enhancement by finding facts in vio-
lation of United States v. Booker, 543 U.S. 220 (2005), failed to ade-
quately consider the 18 U.S.C. § 3553(a) factors, and miscalculated
the base offense level under the United States Sentencing Guidelines.
We disagree and affirm the sentence imposed.
I.
On September 14, 2004, a federal grand jury indicted appellant on
a single charge of possessing a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). J.A. 9. The indictment resulted from
appellant’s arrest after law enforcement officers found a handgun in
the vehicle he was driving. J.A. 96-99. Appellant attempted to enter
a guilty plea on February 10, 2005, but misrepresentend the circum-
UNITED STATES v. BATTLE 3
stances of his guilt to the court. He first testified that the firearm was
not his and that he did not know it was in his car. J.A. 98. Appellant
then changed his testimony and stated the firearm was his. J.A. 98-99.
Then appellant said the firearm was not his but that he knew the gun
was in the car. J.A. 101. Following a brief recess, appellant admitted
that he had lied under oath. J.A. 103. The district judge refused to
accept the plea because of appellant’s inconsistent statements. J.A.
103-05.
On February 16, 2005, the day trial was scheduled to begin, appel-
lant again stated that he wanted to enter a guilty plea. J.A. 171. The
district court conducted a standard plea colloquy. As part of the collo-
quy, the court found that appellant was competent, was acting volun-
tarily, appreciated the consequences of pleading guilty, and that there
was a factual basis for the plea. J.A. 204-05. At the end of the collo-
quy, the district judge stated:
Your plea of guilty is provisionally accepted pending receipt
of a presentence investigation, and the court will defer final
acceptance of the plea agreement and the adjudication of
guilt until we’ve all had an opportunity to review that report.
J.A. 205. When the jurors were brought into the courtroom, the dis-
trict judge informed them that he had "accepted" the defendant’s plea
and that their service was no longer needed. J.A. 207.
The district court issued an order pertaining to the guilty plea on
February 23, 2005. The order recited the events of the second plea
hearing, and noted that the court had "conditionally accepted" appel-
lant’s guilty plea. J.A. 219. In choosing to conditionally accept the
plea, the court noted that it was deferring further action pursuant to
U.S.S.G. § 6B1.1(c), which permits a court to accept or reject a plea
agreement described in Rule 11(c)(1)(A) or (C), or to defer a decision
on the agreement until it has an opportunity to review the presentence
report. The district judge concluded the order by stating, "[T]he court
adjudges and the defendant now stands provisionally guilty of Count
One of the single-count indictment." J.A. 219.
After reviewing the presentence report, appellant moved to with-
draw his guilty plea. As the basis for his motion, appellant claimed
4 UNITED STATES v. BATTLE
he was surprised at the high sentence recommended by the presen-
tence report. J.A. 235-36. In deciding the motion, the district court
applied the "fair and just reason" standard for withdrawal provided in
Rule 11(d)(2)(B). See J.A. 233, 239-40. The district court denied the
motion, concluding that appellant’s reaction to the presentence report
was not a fair and just reason for withdrawal. J.A. 238-39.
The presentence report made two recommendations that are partic-
ularly relevant to the issues on appeal. First, the report assigned a base
offense level of twenty-four under U.S.S.G. § 2K2.1(a)(2) because
appellant had two prior controlled-substance felony convictions. Sec-
ond, the report recommended a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5) because appellant previously used a firearm
in connection with another felony offense. J.A. 294-95. Appellant
objected to both of these recommendations. J.A. 305.
At the outset of the sentencing hearing, the district court stated that
"[e]xcept as may be modified by specific rulings made at this hearing,
the court adopts as its findings the facts and conclusions contained in
the presentence report." J.A. 241. The district court then heard evi-
dence on whether appellant used a firearm while distributing con-
trolled substances. Jessica Blankenship, an acquaintance of appellant,
testified that she purchased crack from appellant once and that she
saw her friends purchase crack from him approximately eight or nine
times. J.A. 247-48. Blankenship further testified that she saw appel-
lant with a gun every time she or her friends purchased crack from
him. J.A. 250. Appellant offered only his own testimony to rebut
Blakenship’s testimony. He testified that he hardly knew Blankenship
and that he never had a gun in his dealings with her. J.A. 263-64. The
court found Blankenship to be more credible than appellant based on
appellant’s perjury during his first plea hearing. J.A. 271. Thus, rely-
ing on Blankenship’s testimony, the court found that appellant had
used a firearm in connection with another felony offense and applied
the four-level enhancement under U.S.S.G. § 2K2.1(b)(5). J.A. 271.
The district court also specifically found that the presentence report
properly calculated the base offense level under U.S.S.G.
§ 2K2.1(a)(2). J.A. 273. Before imposing the sentence, the court
noted, "[W]hen you pled guilty on February 16, 2005, I deferred final
acceptance of your plea agreement, as well as the adjudication of
UNITED STATES v. BATTLE 5
guilt, pending receipt of the presentence report." J.A. 272. The court
then stated, "I now accept your plea agreement and your plea of
guilty, find you guilty, and you stand convicted of that offense before
the court." J.A. 273. In terms of the § 3553(a) factors, the court stated
that it had "considered all of the factors under 18 U.S.C. 3553(a), as
well as the directives of" Booker and our decision in United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005). J.A. 278. The district court
also explained that it found "the guideline range sentence of 120
months to be appropriate in this case." Id. The court then imposed a
sentence of 120-months’ incarceration, which was both the statutory
maximum and at the bottom of the Guidelines range.
II.
This is our first opportunity to consider what it means to "accept"
a guilty plea under Rule 11(d). Before 2002, Rule 32(e) governed the
withdrawal of guilty pleas. That rule stated that if a "motion to with-
draw a plea of guilty . . . is made before sentence is imposed, the
court may permit the plea to be withdrawn if the defendant shows any
fair and just reason." The rules were amended in 2002 so that Rule
11 now governs the withdrawal of guilty pleas. Under Rule 11, a
defendant may withdraw a guilty plea (or plea of nolo contendere)
before the court accepts the plea for any reason or no reason. Fed. R.
Crim. P. 11(d)(1). But if the court has accepted the defendant’s plea,
the plea may only be withdrawn if the court rejects a plea agreement
under Rule 11(c)(5) or if "the defendant can show a fair and just rea-
son for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2). A
guilty plea cannot be withdrawn after a sentence has been imposed
except on direct appeal or by collateral attack. Fed. R. Crim. P. 11(e).
A.
The denial of a motion to withdraw a guilty plea is reviewed for
abuse of discretion. United States v. Bowman, 348 F.3d 408 (4th Cir.
2003). But as another circuit has recognized, the abuse of discretion
standard may not be appropriate in certain circumstances because a
district court cannot deny a motion to withdraw an unaccepted guilty
plea. See United States v. Jones, 472 F.3d 905, 908 (D.C. Cir. 2007).
Accordingly, the District of Columbia Circuit reviews the district
court’s determination of whether a plea has been accepted de novo.
6 UNITED STATES v. BATTLE
Id. at 909. In this case, it is unnecessary to determine what standard
of review applies because we are satisfied that both will require the
same result.
B.
The district court could have accepted the guilty plea even though
it deferred acceptance of the plea agreement and the adjudication of
guilt. The Supreme Court has held that "[g]uilty pleas can be accepted
while plea agreements are deferred, and the acceptance of the two can
be separated in time." United States v. Hyde, 520 U.S. 670, 674
(1997). Before Hyde, this court reached the same result in United
States v. Ewing, 957 F.2d 115 (4th Cir. 1992). Though Hyde and
Ewing predate the 2002 amendments to Rule 11, the advisory com-
mittee note accompanying the amendments indicates the amendments
were intended to incorporate Hyde’s holding. See Fed. R. Crim. P. 11
advisory committee’s note (2002 amendments); Jones, 472 F.3d at
908.
Two other circuits have addressed what it means to accept a guilty
plea under current Rule 11(d). In United States v. Head, 340 F.3d 628
(8th Cir. 2003), the defendant entered a guilty plea and the district
court conducted the plea colloquy. Id. at 629, 631. The defendant sub-
sequently moved to withdraw the guilty plea and the district court
denied his motion. Id. at 629. The Eighth Circuit reversed, holding the
defendant could unconditionally withdraw the plea because the dis-
trict court had not accepted it. Id. at 629. In reaching that conclusion,
the Eighth Circuit considered whether the district court expressly or
impliedly accepted the plea. First, the district court did not expressly
accept the plea because it never stated "‘I accept your plea of guilty.’"
Id. at 630. Second, many of the district court’s statements at the plea
hearing indicated that it was deferring acceptance of the guilty plea,
precluding an implied acceptance. Id. The strongest evidence that an
acceptance did not occur was the district court’s statement that the
government could withdraw the plea agreement if the defendant
"commits any new offense before I accept the guilty plea." Id. 631.
In Jones, the District of Columbia Circuit held that an acceptance
had occurred under Rule 11(d) despite the district court’s statement
that it "‘conditionally accepted’" the plea. Id. at 906-07. Jones entered
UNITED STATES v. BATTLE 7
a guilty plea and, following the plea colloquy, the district court stated
that it would "‘conditionally accept the guilty plea subject to review
of the plea agreement and the presentence report that is prepared.’"
Id. at 906. At the plea hearing, the district court informed Jones of the
consequences of pleading guilty, stating that Jones would only have
the opportunity to withdraw or change his plea if the court did not
accept the plea agreement. Id. at 907. When Jones moved to withdraw
his plea, the district court applied the fair and just standard for with-
drawal and denied Jones’s motion. Id.
On appeal, Jones made two arguments as to why the district court
had not accepted his plea. First, he argued that a "conditional" accep-
tance does not constitute an acceptance for purposes of Rule 11(d).
Id. at 908. The D.C. Circuit rejected that argument, concluding that
the district court’s use of the word "conditional" simply reflected
Jones’s ability to withdraw the plea under Rule 11(d)(2)(A) if the
court rejected the plea agreement. Id. Such "conditions subsequent,"
as the Supreme Court stated in Hyde, do not prevent a district court
from accepting a guilty plea. Id. (citing Hyde, 520 U.S. at 679-80).
Second, Jones argued that the district court acknowledged he had a
general right to withdraw the guilty plea. The D.C. Circuit disagreed,
stating that Jones had no "reasonable basis" for thinking he had a right
to withdraw his plea. Id. at 909. Jones should have realized the final-
ity of the plea, the court reasoned, because the district court used the
word "accepted" (although prefaced by "conditionally") and stated "‘I
find you guilty.’" See id. The D.C. Circuit concluded that, under the
circumstances, the district court accepted Jones’s plea and that he was
therefore required to show a fair and just reason to warrant with-
drawal. Id.
C.
We conclude the district court accepted appellant’s guilty plea.
Placing too much emphasis on the district court’s use of the qualifier
"provisionally" would ignore the inherently conditional nature of
guilty pleas under Rule 11. No guilty plea is absolutely final until a
sentence has been imposed. See Fed. R. Crim. P. 11(e). Before sen-
tencing, every guilty plea can be withdrawn if a defendant can show
a fair and just reason or if the court rejects a plea agreement made
under Rule 11(c)(5). Fed. R. Crim. P. 11(d)(2). Moreover, as Hyde
8 UNITED STATES v. BATTLE
and Jones explained, the potential for later withdrawal does not pro-
hibit a district court from accepting a plea. See Hyde, 520 U.S. at 679-
80; Jones, 472 F.3d 909.
Permitting a defendant to withdraw a guilty plea for any reason or
no reason in these circumstances would undermine the importance of
the plea colloquy. The rules should not be interpreted to allow a
defendant to withdraw a guilty plea "simply on a lark" after the dis-
trict court conducts a thorough plea colloquy and has made the requi-
site findings. See Hyde, 520 U.S. at 676. During the colloquy, the
defendant admits, in open court, that he is guilty and describes the cir-
cumstances of his guilt. It makes little sense to permit an uncondi-
tional withdrawal of a guilty plea after the colloquy has been
conducted, especially when the district court has informed the defen-
dant of the consequences of pleading guilty and the defendant had no
reason to believe he could withdraw the plea at a later date for any
reason. Even if the circumstances warrant a withdrawal after the col-
loquy, the defendant is adequately protected by the fair and just with-
drawal standard. Thus, once the district court has satisfied Rule 11’s
colloquy requirement, there is a presumption that the court has
accepted the defendant’s guilty plea. See United States v. Lambey,
974 F.2d 1389, 1394 (4th Cir. 1992) (en banc) ("If an appropriately
conducted Rule 11 proceeding is to serve a meaningful function, on
which the criminal justice system can rely, it must be recognized to
raise a strong presumption that the plea is final and binding.") Appel-
lant has failed to rebut that presumption in this case.
Rule 11 is silent as to how a district court must signal its accep-
tance of a guilty plea. As a precondition to acceptance, the district
court must first complete the plea colloquy. Fed. R. Crim. P. 11(b).
In that regard, acceptance of a guilty plea is intimately tied to the col-
loquy and Rule 11(b). But beyond conducting the colloquy, the Rules
do not specify what a district court must say or do to accept a plea.
Given the Rules’ silence, we see no reason to require district courts
to use some kind of talismanic "magic words" to effect an acceptance
once the colloquy has been completed.
Although Rule 11 does not require "magic words" for an accep-
tance, there is little doubt that an unambiguous acceptance (e.g., "I
accept your guilty plea") would have avoided the problems encoun-
UNITED STATES v. BATTLE 9
tered here. Such a statement prevents confusion and provides strong,
if not conclusive, evidence that an acceptance has occurred. An unam-
biguous acceptance of a guilty plea is also permissible under Hyde
and Hughes even if the district court defers acceptance of the plea
agreement. Although the district court here did not make such an
unequivocal acceptance, we conclude it nonetheless accepted appel-
lant’s guilty plea and correctly applied the fair and just reason stan-
dard.
III.
Appellant further contends the district court committed three errors
in calculating and imposing his sentence. First, he asserts the district
court erroneously applied a sentence enhancement based on facts
found in violation of Booker. Second, appellant argues the district
court failed to adequately consider the § 3553(a) factors in determin-
ing the appropriate sentence. Finally, appellant argues the district
court erroneously considered his past controlled substance offenses in
calculating the total offense level.
A.
Appellant first argues the district court improperly enhanced his
sentence based on facts not found by a jury. In Booker, the Supreme
Court held the Sentencing Guidelines violate the Sixth Amendment
to the extent they require a court to impose a sentence based on facts
not found by a jury. Booker, 543 U.S. at 245. The Court remedied the
Guidelines’ unconstitutionality by excising and severing the statutory
provisions that made the Guidelines mandatory. Id. Although Booker
made the Guidelines "effectively advisory," id., the sentencing court
must still "consult [the] Guidelines and take them into account when
sentencing," id. at 264. The sentencing court may also "tailor the sen-
tence in light of other statutory concerns as well," specifically the fac-
tors located at 18 U.S.C. § 3553(a). Id. at 245-46.
Sentences that fall within the Guideline range are entitled to a pre-
sumption of reasonableness on appellate review. United States v.
Green, 436 F.3d 449, 456-57 (4th Cir. 2006); see Rita v. United
States, 551 U.S. __, 127 S. Ct. 2456, 2462 (2007) (holding the courts
of appeals may apply a presumption of reasonableness to within-
10 UNITED STATES v. BATTLE
Guidelines sentences). In Rita, the Supreme Court recognized that
Booker’s remedial scheme and the presumption of reasonableness
may result in sentences based on facts found by a judge. See Rita, 127
S. Ct. at 2465-66. Such a result does not present a constitutional issue,
however, because the Court’s "Sixth Amendment cases do not auto-
matically forbid a sentencing court to take account of factual matters
not determined by a jury and to increase the sentence in conse-
quence." Id. Thus, our precedents holding that district courts must
make the factual findings necessary and appropriate to reach the cor-
rect sentence are in accord with Rita. See Green, 436 F.3d at 455;
Hughes, 401 F.3d at 546. The district court therefore did not violate
appellant’s Sixth Amendment rights by imposing a sentence based on
facts not found by a jury.
When applying the Guidelines in an advisory manner, the district
court can make factual findings using the preponderance of the evi-
dence standard. United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005). We review the district court’s factual findings for clear error.
United States v. Tucker, 473 F.3d 556, 560 (4th Cir. 2007). There was
sufficient evidence, in the form of Blankenship’s testimony, to sup-
port the finding that appellant previously used a firearm in connection
with another felony offense. Appellant offered only his own testi-
mony to rebut Blankenship’s testimony, which the district court was
entitled to discredit based on appellant’s prior misrepresentations to
the court. In light of the evidence, the district court did not err in
applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(5).
B.
Appellant next argues the district court failed to adequately con-
sider the § 3553(a) factors. After calculating the sentence under the
Guidelines, the district court must consider that sentence in light of
the § 3553(a) factors. Hughes, 401 F.3d at 546. If the § 3553(a) fac-
tors support a sentence within the Guidelines range, the district court
should impose a sentence within the range that best serves the factors.
Green, 436 F.3d at 455. If the § 3553(a) factors do not support a sen-
tence within the Guidelines range, the district court can impose a sen-
tence outside the range that best serves the factors as long as it
articulates why the factors support the sentence imposed. Id. A district
court must therefore consider the § 3553(a) factors in every case,
UNITED STATES v. BATTLE 11
regardless of whether the sentence imposed is within the Guidelines
range.
The Court in Rita discussed the extent to which a district court
must explain its consideration of the § 3553(a) factors. While
§ 3553(c) requires a district court to offer some explanation of its
application of the factors, the statute does not "insist[ ] upon a full
opinion in every case." Rita, 127 S. Ct. at 2468. The sentencing judge
need only set forth enough "to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exer-
cising his own legal decisionmaking authority." Id. The Court elabo-
rated on how that standard works in cases involving within-
Guidelines sentences:
[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy
explanation. Circumstances may well make clear that the
judge rests his decision upon the Commission’s own reason-
ing that the Guidelines sentence is a proper sentence (in
terms of § 3553(a) and other congressional mandates) in the
typical case, and that the judge has found that the case
before him is typical.
Id. In some cases, applying a Guidelines sentence will in itself be suf-
ficient to demonstrate that the district court has considered the
§ 3553(a) factors. But if a party argues the Guidelines sentence is not
supported by § 3553(a) or requests a variance, the district court will
normally need to give some explanation for the sentence. Id. The nec-
essary amount of explanation depends on the circumstances: "Some-
times the circumstances will call for a brief explanation; sometimes
they will call for a lengthier explanation." Id.
The district court in Rita imposed a sentence at the bottom of the
Guidelines range. Id. at 2462. The defendant had moved for a sen-
tence outside the Guidelines range based on § 3553 for three reasons:
(1) his past experience in criminal justice work, which he argued
made him a target for retribution from other inmates; (2) his twenty-
five year military career, during which he received numerous com-
mendations for his service; and (3) his poor physical health. See id.
at 2461. The district court heard the parties’ arguments and "asked
12 UNITED STATES v. BATTLE
questions about each factor." Id. at 2462. The district judge concluded
the Guidelines range was not "inappropriate" and that the sentence
supported the public’s need to be protected from further wrongdoing
under § 3553(a)(2)(C). See id. With that, the district court sentenced
the defendant to a thirty-three month term of imprisonment. Id.
The Supreme Court determined the district court’s explanation suf-
ficiently demonstrated that it considered the § 3553(a) factors. The
record as a whole, the Court reasoned, showed the district judge lis-
tened to the parties’ arguments, considered the evidence, and under-
stood the relevant mitigating factors. Id. at 2469. The district judge
"simply found" the circumstances did not warrant a lower sentence.
Id. The Supreme Court noted the district judge "might have said
more," but further explanation was not required because the record
demonstrated that he "heard and considered the evidence and argu-
ment," that he considered the Commission’s determination of the
proper sentence in like cases, and that he felt the defendant’s personal
characteristics did not support a lesser sentence. See id. "Where a
matter is as conceptually simple as in the case at hand and the record
makes clear that the sentencing judge considered the evidence and
arguments," the Court concluded, "we do not believe the law requires
the judge to write more extensively." Id.
Appellant here objected to the presentence report’s determination
that no mitigating factors supported a sentence outside the Guidelines
range. See J.A. 306. Appellant requested that the court "take into con-
sideration his medical condition, the lack of educational opportunities
in the prison system, and other factors apparent from the record, in
passing sentence." Id. While defense counsel failed to offer any argu-
ment on those issues at the sentencing hearing, it is clear from the
record that the district judge understood appellant’s personal charac-
teristics. The presentence report presented an exhaustive overview of
appellant’s personal history. As part of that history, the report thor-
oughly discussed appellant’s physical condition and mental health,
noting that he suffered from chronic arthritis pain, allergies, and
depression. J.A. 300-01. The presentence report also noted that appel-
lant completed only the eleventh grade. J.A. 302. The district judge
accepted the presentence report and made it a part of the record, and
the record as a whole demonstrates that he was more than familiar
with the report’s findings and recommendations. See J.A. 241.
UNITED STATES v. BATTLE 13
Appellant moved for a lesser sentence based on the factors, which,
under Rita, required the court to do more than simply apply the
Guidelines sentence. See Rita, 127 S. Ct. 2468. The district judge
stated that he considered "all of the factors under 18 U.S.C. 3553(a)"
and found "the guidelines range sentence of 120 months to be appro-
priate in this case." J.A. 278. As the Supreme Court concluded in
Rita, such a statement demonstrates that the district court considered
appellant’s arguments but found his personal characteristics did not
warrant a sentence outside the Guidelines range. See id. at 2469.
Thus, the district judge was entitled to rely on the Commission’s con-
sideration of the § 3553(a) factors in formulating the sentence.
Accordingly, the district judge’s brief statement was sufficient under
the circumstances to show he considered the § 3553(a) factors to
determine the appropriate sentence.
To the extent appellant argues his sentence was substantively
unreasonable, we do not agree. Because appellant’s sentence imposed
fell within the guidelines range, the sentence is entitled to a presump-
tion of reasonableness. United States v. Ruhbayan,__ F.3d __, 2007
WL 2215955, at *10 (4th Cir. Aug. 3, 2007). Under the reasonable-
ness inquiry, we must consider "whether the sentence was selected
pursuant to a reasoned process in accordance with law, in which the
court did not give excessive weight to any relevant factor, and which
effected a fair and just result in light of the relevant facts and law."
Green, 436 F.3d at 457. There is no reason to believe that the district
court gave excessive weight to any of the relevant factors. Moreover,
having reviewed the record, we cannot conclude that appellant’s cir-
cumstances, such as his health issues or educational background,
make his sentence unfair or unjust.
C.
Finally, appellant argues the district court improperly calculated
the base offense level. The district court assigned a base offense level
of twenty-four pursuant to U.S.S.G. § 2K2.1(a)(2), which applies if
"the defendant committed any part of the instant offense subsequent
to sustaining at least two felony convictions of either a crime of vio-
lence or a controlled substance offense." Appellant asserts he had
only one qualifying prior felony controlled substance offense convic-
tion and that the district court thus erred by applying § 2K2.1(a)(2).
14 UNITED STATES v. BATTLE
To qualify as a felony controlled substance offense conviction
under § 2K2.1(a)(2), the offense must satisfy two requirements: (1)
the offense must have been a "controlled substance offense" as
defined at § 4B1.2(b); and (2) the offense must have received criminal
history points pursuant to § 4A1.2(a), (b), or (c). See U.S.S.G.
§ 2K2.1, app. notes 1 & 12. A "controlled substance offense" includes
any offense "punishable by imprisonment for a term exceeding one
year" that prohibits "the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute, or dispense." Id.
§ 4B1.2(b). The Guidelines also assign criminal history points for
prior sentences of imprisonment. See id. § 4A1.1. But if the term of
imprisonment did not exceed one year, a district court may only
assign points if the sentence was "imposed within ten years of the
defendant’s commencement of the instant offense." Id. § 4A1.2(e)(2).
Among appellant’s many prior convictions, there are two offenses
that may qualify as a felony controlled substance offense conviction
for purposes of § 2K2.1(a). First, appellant was arrested in February
1994 and charged with possession with the intent to distribute. J.A.
296. He pleaded guilty to that offense on August 1, 1994, receiving
thirty-six days incarceration and three years probation. Id. The district
court assigned no criminal history points for that offense, ostensibly
because it fell outside the time period established in § 4A1.2(e)(2). Id.
Second, appellant was arrested in July 1995 and again charged with
possession with the intent to distribute. J.A. 297. He subsequently
pleaded guilty to that offense as well, receiving four years incarcera-
tion. Id. The district court assigned three criminal history points for
that offense pursuant to § 4A1.1(a). Id.
Appellant does not dispute that the district court properly consid-
ered the 1995 offense in calculating the base offense level. Nor does
appellant appear to dispute that the 1994 offense was a "controlled
substance offense" under § 4B1.2(b). Rather, appellant contends the
district court should not have considered the 1994 offense in calculat-
ing the base offense level because he did not receive criminal history
points for that offense.
We agree with appellant in only one respect: if the district court
correctly assigned no criminal history points for the 1994 offense,
then the district court erred in applying § 2K2.1(a)(2). A closer exam-
UNITED STATES v. BATTLE 15
ination of the facts and relevant Guidelines provisions reveals, how-
ever, that the district court erred only by failing to assign criminal
history points for that offense. In deciding that § 4A1.1(e)(2) applied,
the district court apparently looked to the date of the arrest. That was
incorrect because § 4A1.1(e)(2) references only two dates: (1) the
date the sentence was imposed, and (2) the date the defendant com-
menced the instant offense. See U.S.S.G. § 4A1.1(e)(2). Thus,
§ 4A1.1(e)(2) does not apply if the sentence was imposed within ten
years of the instant offense, regardless of when the conduct giving
rise to that sentence occurred. See United States v. Adams, 403 F.3d
1257, 1260 (11th Cir. 2005); United States v. Napoli, 179 F.3d 1, 17-
18 (2d Cir. 1999); United States v. Carroll, 110 F.3d 457, 461-62 (7th
Cir. 1997); United States v. Lavin, 27 F.3d 40, 41-42 (2d Cir. 1994).*
Appellant pleaded guilty to the 1994 offense on August 1, 1994.
J.A. 296. Thus, the sentence was imposed, at the earliest, on August
1, 1994. According to the indictment and appellant’s admissions, the
instant offense occurred on July 2, 2004, J.A. 9, 195, approximately
nine years and eleven months after appellant pleaded guilty to the
1994 offense. Therefore, § 4A1.2(e)(2) did not apply and the district
court should have assigned one criminal history point based on the
sentence of thirty-six days’ incarceration appellant received for com-
mitting the 1994 offense. See U.S.S.G. § 4A1.1(c).
Appellant had two prior felony controlled substance offense con-
victions under § 2K2.1(a)(2): convictions in 1994 and 1995 for pos-
session with intent to distribute, both of which received or should
have received criminal history points. Accordingly, we affirm the dis-
trict court’s calculation of the base offense level pursuant to
§ 2K2.1(a)(2).
*We note that appellant made only general objections to the presen-
tence report’s calculation of the base offense level and its criminal his-
tory point determinations. See J.A. 305. Moreover, at the sentencing
hearing, appellant did not present detailed arguments to support his
objections, but instead superficially asserted that he received too many
criminal history points and that the sentencing process violated his rights
under Booker. Although appellant’s objections were sufficient to pre-
serve the issues for appeal, appellant certainly did not make detailed
arguments on the issues we discuss herein, particularly with respect to
the nuances of § 2K2.1(a)(2).
16 UNITED STATES v. BATTLE
IV.
For the foregoing reasons, we affirm the district court’s denial of
appellant’s motion to withdraw his guilty plea. We also conclude the
district court followed Booker and adequately considered the
§ 3553(a) factors in determining the appropriate sentence. Moreover,
the district court correctly calculated the base offense level under the
Guidelines.
The judgment of the district court is accordingly
AFFIRMED.
GREGORY, Circuit Judge, dissenting:
On February 16, 2005, Terrance L. Battle pleaded guilty, pursuant
to a plea agreement, to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). After making the neces-
sary investigation and concluding that there was a factual and legal
basis for the guilty plea, the district court said to Battle, "Your plea
of guilty is provisionally accepted pending receipt of the presentence
investigation, and the court will defer final acceptance of the plea
agreement and the adjudication of guilt until we’ve all had an oppor-
tunity to review that report." J.A. 205. One week after the hearing, the
court issued an order saying it had conditionally accepted Battle’s
guilty plea but that "the guilty plea will not be accepted or rejected
by the court until a presentence report is available for the court’s con-
sideration." J.A. 216.
Despite this evidence that the district court did not accept Battle’s
guilty plea at the hearing in question, the majority treats the district
court’s provisional acceptance as a final one. I cannot agree with this
conclusion. The district court did not accept Battle’s guilty plea until
the sentencing hearing, by which time Battle had already asked that
the plea be withdrawn. According to Rule 11(d) of the Federal Rules
of Criminal Procedure, the district court was required to permit Battle
to withdraw his plea. Because the majority does not remand Battle’s
case with an order that the district court do so, I respectfully dissent.
UNITED STATES v. BATTLE 17
Rule 11(d)(1) of the Federal Rules of Criminal Procedure provides
that a defendant may withdraw a guilty plea "before the court accepts
the plea, for any reason or no reason." The language of the Rule is
not discretionary; if a defendant wishes to withdraw his guilty plea
before the district court has accepted it, the court must allow him to
withdraw it. See, e.g., United States v. Head, 340 F.3d 628, 631 (8th
Cir. 2003) ("Head’s guilty plea remained unaccepted by the district
court when he moved to withdraw it on September 4, 2002, and under
Rule 11(d) Head retained an absolute right to withdraw his plea.").
The crucial issue in this case is when, precisely, the district court
accepted Battle’s plea.
After discussing the Eighth Circuit’s ruling in United States v.
Head, and the District of Columbia Circuit’s ruling in United States
v. Jones, 472 F.3d 905 (D.C. Cir. 2007), the majority concludes that
the district court accepted Battle’s plea at the February 16 hearing.
The majority begins its analysis by stating that placing "emphasis on
the district court’s use of the qualifier provisionally would ignore the
inherently conditional nature of guilty pleas under Rule 11." Ante at
7. Yet precisely because "[n]o guilty plea is absolutely final until a
sentence has been imposed," ante at 7, the "provisional" nature of all
pleas is implied and Rule 11 inherently incorporates this concept. See,
e.g., United States v. Hyde, 520 U.S. 670, 679-80 (1997) ("When the
‘fair and just reason’ standard was added in 1983, the Rules already
provided that the district court could defer decision on whether to
accept the plea agreement, that it could then reject the agreement, and
that the defendant would then be able to withdraw his guilty plea.
Guilty pleas made pursuant to plea agreements were thus already sub-
ject to this sort of condition subsequent."); Advisory Committee
Notes on the 1983 Amendment to Fed. R. Crim. P. 32 ("Given the
great care with which pleas are taken under this revised Rule 11, there
is no reason to view pleas so taken as merely ‘tentative,’ subject to
withdrawal before sentence whenever the government cannot estab-
lish prejudice."). Thus, if the district court’s description of Battle’s
plea as "provisionally accepted" and "conditionally accepted" had any
meaning, those descriptions must have meant that the plea was not
simply contingent on the normal Rule 11 conditions, such as the
defendant’s right to withdraw the plea if the plea agreement is ulti-
mately rejected.
18 UNITED STATES v. BATTLE
If the district court’s description of a plea as provisionally accepted
were simply a stray remark during the Rule 11 colloquy, then this
Court would be remiss in ignoring the clear intent of the district court
to accept the defendant’s plea. In this case, however, there is ample
evidence supporting the conclusion that the district court, although it
could have accepted Battle’s plea at the Rule 11 hearing, did not, in
fact, accept the plea at that time. In addition to describing Battle’s
plea as having been "provisionally" and "conditionally" accepted, the
district court’s order stated "that the guilty plea will not be accepted
or rejected by the court until a presentence report is available for the
court’s consideration." (J.A. 216) Compare United States v. Shaker,
279 F.3d 494, 496 (7th Cir. 2002) (holding that district court had
deferred acceptance of plea where it stated "I am deferring my deci-
sion on acceptance or rejection of your plea of guilty and your Plea
Agreement until after I’ve had an opportunity to study the Presen-
tence Report"), with Petsche v. Tafoya, 146 Fed. App’x 306, 314
(10th Cir. 2005) (holding that district court accepted plea, despite not
expressly declaring such, where there were no conditional or tentative
statements and "court did not say that it wanted to review the presen-
tence report before formally accepting [the] plea"). Furthermore, the
district court explicitly chose to defer Battle’s adjudication of guilt
until receipt of the presentence report. Thus, rather than isolated
remarks terming the plea "provisional," the district court repeatedly
expressed the view that it was deferring acceptance of Battle’s plea.
The actions of the district court are distinguishable from those of
the district court in Jones. First, in Jones, the only evidence that the
district court had deferred acceptance of the defendant’s guilty plea
were two isolated remarks, one of which referred to a "conditional[ ]"
acceptance of the guilty plea. 472 F.3d at 909. Unlike in the instant
case, however, the balance of the district court’s remarks in Jones
made clear that the court was accepting the plea. See id. Most notably,
the district court explicitly stated that it found the defendant guilty.
Id. By contrast, in this case, the district court specifically noted that
it was deferring any adjudication of guilt.
The instant case is much closer to the situation in Head, where the
Eighth Circuit held that the district court had deferred acceptance of
the defendant’s guilty plea. The district court in Head, as in the
instant case, never explicitly accepted the plea through "the use of
UNITED STATES v. BATTLE 19
words such as ‘I accept your plea guilty.’" See 340 F.3d at 630-31.
In this case, the district court did not state that it found Battle "guilty"
until the sentencing hearing. See J.A. 273. As in this case, the lack of
any adjudication of guilt or express statements from the district court
regarding that the court had, in fact, accepted the defendant’s plea, led
the Eighth Circuit to conclude that the district court had not accepted
the plea. See 340 F.3d at 630-31.
The majority is correct that Rule 11 is silent as to how a district
court signals its acceptance of a guilty plea. In this case, rather than
requiring resort to any "magic words," the available evidence indi-
cates that the district court intended to defer acceptance of the plea
until the court reviewed the presentence report. The instant case is not
one of silence, where the district court conducted the Rule 11 collo-
quy but merely neglected to ever utter a phrase accepting the defen-
dant’s plea. Rather, the district court repeatedly described the plea as
"provisional" or "conditional," stated its intent to not accept or reject
the plea until review of the presentence report, and deferred adjudica-
tion of the defendant’s guilt. See Shaker, 279 F.3d at 497 (noting that
to construe deferral as acceptance would "ignore the district court’s
clear expression of intent to defer acceptance"). Accordingly, I
believe that all of the evidence leads to but one conclusion: the district
court did not accept Battle’s plea on February 16th.
For the foregoing reasons I believe Battle had the absolute right to
withdraw his guilty plea at the sentencing hearing and thus I respect-
fully dissent from the majority’s conclusion.