UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 96-40612
(Summary Calendar)
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GEORGE CROCKER,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
(4:96-CR-2-1)
_______________________________________________
March 12, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
David George Crocker appeals his sentence for interstate
transportation of stolen property in violation of 18 U.S.C. § 2314.
Crocker's court-appointed counsel alleges that there are no
meritorious issues for appeal and has submitted a motion to
withdraw. Finding no meritorious issues for appeal, we grant
defense counsel's motion and dismiss Crocker's appeal.
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
Crocker moved a stolen Caterpillar front end loader with
backhoe and a Honda water pump from a construction site in Sadler,
Texas to a site in Oklahoma. It is undisputed that the loader was
worth more than $40,000 and that Crocker knew it was stolen.
Crocker cased the site several days prior to the theft. In
preparation and furtherance of the offense, Crocker solicited one
Joseph Carrell to assist him, stole a goose-necked trailer to
transport the loader, attempted to paint over the loader’s serial
number, and arranged to store the backhoe on a farm in Oklahoma.
A grand jury in the Eastern District of Texas indicted Crocker
on charges of interstate transportation of stolen property in
violation of 18 U.S.C. § 2314 and aiding and abetting in violation
of 18 U.S.C. § 2. Crocker entered into a plea agreement. The
district court sentenced him to an eighteen-month prison term,
ordered him to serve a three-year term of supervised release, pay
a $3,000 fine, and pay a $50 mandatory assessment. Crocker appeals
his sentence, but does not specify any grounds for this appeal.
Crocker's court-appointed counsel filed a motion to withdraw
from this appeal pursuant to Anders v. California, 386 U.S. 738, 87
S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Anders provides appointed
counsel the opportunity to withdraw from an appeal when he or she
finds that no nonfrivolous issues remain. Id. at 744, 87 S. Ct. at
1400. Counsel must request permission from the appellate court to
withdraw and supply a brief referring to anything in the record
-2-
that might support an appeal. Id. Moreover, the appellant
independently may brief any issues to the court that arguably
support his appeal. Id. Following these actions, the court must
fully examine all proceedings to determine whether meritorious
issues remain for appeal. If there are none, the court may grant
counsel's motion to withdraw and dismiss the appeal. Id.
Accordingly, under Anders we must examine the record to determine
the propriety of each stage of trial, including any pretrial
proceedings, the indictment, the plea hearing, and the sentencing
hearing, to ensure that there are no meritorious issues for appeal.
The record points to no issues in the pretrial proceeding or
the indictment that might arguably support the appeal. Id. at 744,
87 S. Ct. at 1400. Crocker filed no pretrial motions, so there
were no pretrial proceedings. Further, the indictment suffers from
no appealable defects. Under the law of this circuit, an
indictment is sufficient if it (1) contains the elements of the
offense charged; (2) fairly informs the defendant of the charge
against him; and (3) enables him to plead acquittal or conviction
in bar of future prosecutions for the same offense. United States
v. Hagmann, 950 F.2d 175, 183 (5th Cir. 1991), cert. denied, 506
U.S. 835, 113 S. Ct. 108, 121 L. Ed. 2d 66 (1992). The indictment
in this case charged Crocker with unlawfully transporting a stolen
backhoe and water pump with a value of $5,000 or more in interstate
commerce with knowledge that the equipment was stolen. The
-3-
indictment contains the elements of the offense. See United States
v. Perry, 638 F.2d 862, 864-65 (5th Cir. 1981) (listing elements of
interstate transportation of stolen property as knowingly and
willingly moving items of stolen property, worth at least $5,000,
in interstate commerce). Additionally, the indictment states the
specific code section violated and includes a description of the
loader and pump. Therefore we find that the indictment fairly
informs Crocker of the charges against him. Hagmann, 950 F.2d at
183.
The indictment is also sufficient as to the charge of aiding
and abetting. Aiding and abetting is not listed separately, but is
included in Count 1 of Crocker’s indictment. Aiding and abetting
is not a separate offense, but it is an alternative charge in every
indictment, even if implicit. United States v. Neal, 951 F.2d 630,
633 (5th Cir. 1992). A charge of aiding and abetting, implicit in
the indictment, is generally sufficient if the indictment lists the
elements of the offense, informs the defendant, and enables him to
make subsequent pleas. See id. (finding no abuse of discretion in
jury instruction on aiding and abetting, when indictment lacked
elements of offense but referenced 18 U.S.C. § 2). Therefore, we
find that the indictment is sufficient under the law of this
circuit.
Next we must look to the plea hearing to determine whether any
issues merit appeal. Because Crocker pled guilty, we must ensure
-4-
that his constitutional rights were waived voluntarily and
knowingly. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709,
1711, 23 L. Ed. 2d 274 (1969). Before accepting a plea of guilty,
the trial court must address the defendant personally in open court
and determine that the defendant understands the mandatory minimum
penalty provided by law, if any, and the maximum possible penalty
provided by law. Fed. R. Crim. P. 11(c)(1). “This Court has long
analyzed Rule 11 as addressing three ‘core concerns’: (1) whether
the guilty plea was coerced; (2) whether the defendant understands
the nature of the charges; and (3) whether the defendant
understands the consequences of his plea.” United States v.
Johnson, 1 F.3d 296, 300 (5th Cir. 1993) (en banc). Further, the
district court must inform the defendant about the use of the
sentencing guidelines to determine punishment and inform him that
the court may depart from these guidelines. United States v.
Hekimain, 975 F.2d 1098, 1103 (5th Cir. 1992). Finally, the
district court must describe to the defendant the terms and
conditions of supervised release. Id.
During the plea hearing, the court verified Crocker's reason
for pleading guilty. Crocker admitted that his plea was voluntary
and that he was neither coerced nor promised anything in exchange
for his guilty plea. The court informed Crocker of the
consequences of his plea, described supervised release, and
explained the use of the sentencing guidelines. Therefore, we find
-5-
that Crocker’s plea was completely proper under Rule 11 and the law
of this circuit.
Finally, we must review the record of the sentencing hearing
for any issues that might arguably support the appeal. During
sentencing, Crocker filed two objections to the Presentence Report
(PSR). Crocker first objected to the PSR’s failure to recommend a
two-level decrease in offense level for acceptance of
responsibility under U.S. Sentencing Guidelines Manual § 3E1.1.
The district court agreed with Crocker and granted the two-level
decrease. Crocker also objected to the PSR recommendation of a
two-level increase of the offense level for "more than minimal
planning." See U.S.S.G. Manual § 2F1.1(b)(2)(A) (1995). The
district court held that the crime involved more than minimal
planning and adopted the two-level increase over Crocker’s
objection.
Were we reviewing this two-level increase on the merits, we
would review for clear error the district court's determination
that the crime involved "more than minimal planning." United
States v. Clements, 73 F.3d 1330, 1341 (5th Cir. 1996). The
Sentencing Guidelines define "more than minimal planning" as "more
planning than is typical for the commission of the offense in a
simple form." U.S.S.G. Manual § 1B1.1, commentary, n.1(f) (1995)
The record clearly indicates planning on Crocker's part. For
example, Crocker observed the backhoe in Texas several days prior
-6-
to the theft and thereafter recruited a confederate to help him
steal it across state lines. He acquired a trailer, which he used
to transport the backhoe, and he made arrangements to stash the
backhoe in Oklahoma. Therefore, the district court could
reasonably have found that Crocker committed the offense with more
planning than is typical for the commission of this offense in a
simple form. See United States v. Barndt, 913 F.2d 201, 204 (5th
Cir. 1990) (upholding district court's finding of more than minimal
planning when defendant formed intent, in advance, to steal copper
wire from hanging telephone line, collected cutting tool, cut
wire, loaded wire into vehicle, sought buyer, transported it to
buyer, and made sale).
Crocker made no other objections at sentencing. The record
reveals no clear error committed by the district court in relation
to Crocker's sentencing. Accordingly, we find nothing in the
sentencing record that might arguably support the appeal. See
Anders, 386 U.S. at 744, 87 S. Ct. at 1400.
Crocker was provided with a copy of counsel's brief and given
an opportunity to raise any issues he chose. However, Crocker did
not submit a brief. After a full examination of all the
proceedings, we find no meritorious issues to support Crocker’s
appeal. Therefore, we GRANT counsel's request to withdraw, and we
DISMISS this appeal.
-7-