UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONNIE RAY FLOYD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-00574)
Submitted: September 7, 2007 Decided: September 19, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. William Earl Day, II, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnie R. Floyd appeals his conviction and sentence after
pleading guilty to escape from a halfway house, in violation of 18
U.S.C. §§ 751(a), 4082 (2000). Floyd’s attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious issues on appeal, but that
Floyd challenges the district court’s ruling on his motion to
dismiss the indictment and the adequacy of the Fed. R. Crim. P. 11
hearing. Floyd was notified of the opportunity to file a pro se
supplemental brief but has failed to do so. Because our review of
the record discloses no reversible error, we affirm.
Floyd contends that the district court erred in denying
his motion to dismiss the indictment.1 This court reviews de novo
a district court’s denial of a motion to dismiss the indictment
made before trial. See United States v. Loayza, 107 F.3d 257, 260
(4th Cir. 1997). At the hearing on his motion to dismiss, Floyd
claimed the United States Parole Commission (“Commission”)
erroneously calculated his full-term expiration date and that he
was being held illegally on parole at the time of his latest parole
revocation hearing. Floyd also asserted that the Commission
unlawfully converted his regular parole classification into special
parole, thereby causing him forfeit an accrued amount of “street
1
In his plea agreement, Floyd preserved his right to challenge
the denial of his motion to dismiss the indictment.
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time.” However, Floyd admitted, in both his motion to dismiss and
at the subsequent hearing, that even if his assertions were
accurate, his parole term would have continued until November 2005;
therefore, Floyd would have been on parole during his most recent
revocation proceeding in January 2005. Additionally, the district
court noted that these same claims were presented in a 2005 habeas
petition pursuant to 28 U.S.C. § 2241 (2000), which was dismissed.2
Floyd also asserted that the Commission failed to take into
account the good time and “work credits” that he had accrued.
However, Wanda Harris, a case management coordinator with the
Federal Bureau of Prisons, testified at the hearing that, based on
his Bureau of Prisons file, Floyd’s good time credit was properly
included in his full-term expiration date. Additionally, Floyd
admitted he was told to remain at the halfway house until March 27,
2006, and that he had signed the corresponding certificate of
parole. Floyd conceded he was aware when he left the halfway house
on March 6, 2006, that he would be put on escape status if he did
not return. Based on Floyd’s admissions and the testimony
presented at the hearing, there is no evidence indicating that
Floyd was erroneously held on parole or that the Commission made
any material error in calculating his full-term expiration date.
2
The § 2241 petition was dismissed by the district court for
failure to prosecute, as Floyd failed to respond to the
Commission’s motion for summary judgment. Floyd v. United States
Parole Comm’n, No. 4:05-cv-01283-TLW (D.S.C. Mar. 28, 2006).
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Therefore, we conclude that the district court did not err in
denying Floyd’s motion to dismiss the indictment.
Floyd also contends that the district court failed to
comply with the requirements of Fed. R. Crim. P. 11 in conducting
his guilty plea hearing. During a Rule 11 plea colloquy, the
district court must address the defendant in open court and inform
him of the following: the nature of the charge; any mandatory
minimum sentence and the maximum possible sentence; the
applicability of the sentencing guidelines; the court’s obligation
to impose a special assessment; the defendant’s right to an
attorney; his right to plead not guilty and be tried by a jury with
the assistance of counsel; his right to confront and cross-examine
witnesses; his right against self-incrimination; and his right to
testify, present evidence, and compel the attendance of witnesses.
The defendant must also be told that a guilty plea waives any
further trial and that his answers at the proceeding may be used
against him in a prosecution for perjury. Under Rule 11(b)(2), the
court must address the defendant to determine that the plea is
voluntary. The court must require disclosure of any plea agreement
under Rule 11(c)(2) and determine a factual basis for the plea
under Rule 11(b)(3). Because Floyd withdrew his pro se motion to
withdraw his guilty plea, any challenges to the Rule 11 hearing are
reviewed for plain error. See United States v. Martinez, 277 F.3d
517, 524 (4th Cir. 2002).
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After a thorough review of the record, we conclude that
Floyd knowingly and voluntarily entered into his guilty plea with
a full understanding of the consequences, and that there was no
error in the district court’s acceptance of Floyd’s plea.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Floyd’s conviction and sentence. We also deny
Floyd’s motion to substitute counsel.3 This court requires counsel
inform his client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. 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
3
To the extent that Floyd attempted to raise a claim of
ineffective assistance of counsel, there is no evidence on the
record to support his allegations. Accordingly, any such claim
must be raised as part of a 28 U.S.C. § 2255 (2000) motion rather
than on direct appeal. See United States v. King, 119 F.3d 290,
295 (4th Cir. 1997).
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