UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-20809
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EARL WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(CR-H-282-14)
September 5, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
James Earl Williams appeals his conviction and sentence for
conspiracy to possess with intent to distribute and distribution of
cocaine base in violation of 21 U.S.C. § 846. Williams’s court-
appointed counsel alleges that no nonfrivolous issues exist on
appeal and thus has submitted a motion to withdraw. Finding no
*
Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
meritorious issues for appeal, we grant defense counsel’s motion
and dismiss Williams’s appeal.
I
Williams pleaded guilty pursuant to a written plea agreement
to conspiracy to possess with intent to distribute and distribution
of cocaine base in violation of 21 U.S.C. § 846. Williams admitted
in district court to participating in a crack cocaine conspiracy by
acting as a “runner” between drug sellers in Bryan and College
Station, Texas and drug distributors in Houston, Texas. When the
district court subsequently asked Williams if he had intended to
commit the acts to which he had admitted, Williams responded, “I
didn’t mean to do it.” The district court reiterated its question,
and Williams responded that the facts recited by the government
were true and that he had intended to commit the acts described.
The district court found that Williams pleaded guilty voluntarily
and knowingly, and that an adequate factual basis supported the
plea. The court sentenced him to 135 months in custody, a five-
year term of supervised release, and a $50.00 special assessment.
Williams appeals.
II
Williams’s court-appointed counsel filed a motion to withdraw
from this appeal pursuant to Anders v. California, 386 U.S. 738,
744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), which
establishes the procedure an appointed attorney must follow in
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order to withdraw from an appeal. If, after a conscientious
examination, counsel finds that no nonfrivolous issues remain in an
appeal, he or she may request permission from the appellate court
to withdraw. Id. Counsel must brief the court on any issue that
might arguably support an appeal and give the appellant an
opportunity to argue any point he or she chooses. Id. After a
full examination by the court, if the appeal is found to be wholly
frivolous, the court may grant counsel’s request to withdraw and
dismiss the appeal. Id. Counsel in this case briefed the issues
he believes might arguably support an appeal, and he provided
Williams with a copy of the brief. Williams also submitted a brief
addressing several issues.
Williams initially argues that his guilty plea was uninformed
and involuntary; counsel contradicts this contention.1 Rule 11 of
the Federal Rules of Criminal Procedure requires the district court
to follow certain procedures in taking a plea to ensure that the
plea is knowing and voluntary. In determining whether the district
court complied with Rule 11, we conduct “a straightforward, two-
question ‘harmless error’ analysis: (1) Did the sentencing court
in fact vary from the procedures required by Rule 11, and (2) if
so, did such variance affect substantial rights of the defendant?”
1
Counsel argues in the alternative that Williams waived in the plea
agreement his right to appeal the entry of his guilty plea. The waiver-of-appeal
provision in Williams’s plea agreement, however, only pertains to Williams’s
waiver of his right to appeal his sentence or the manner in which it was
determined.
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United States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en
banc).
Review of the plea colloquy reveals that the district court
complied with the procedures required by Rule 11. The court
informed Williams of, and determined that Williams understood, the
following: the nature of the charge against him; the mandatory
minimum penalty provided by law; the maximum possible penalty
provided by law; the effect of the supervised release term; the
court’s duty to consider the applicable sentencing guidelines; and
the court’s ability to depart from those guidelines under some
circumstances. The court also informed Williams of the following
rights: his right not to plead guilty; his right to a jury trial
and to counsel; his right to confront and cross-examine adverse
witnesses; and his right against compelled self-incrimination.
Finally, the court informed Williams that by pleading guilty he
waived his right to a jury trial and that his answers to the
court’s questions could be used against him in a subsequent perjury
prosecution.
In response, Williams stated that he had not been induced to
plead guilty by promises made to him by any person, he acknowledged
that he understood that his plea agreement limited his right to
appeal, and he executed the plea agreement in open court.
Williams’s bare allegation that his plea was involuntary and
unknowing does not undermine the record evidence demonstrating that
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Williams’s plea was knowing and voluntary and that the district
court complied with Rule 11 in all respects.
In addition, without providing any specific argument, Williams
generally asserts that his plea was not supported by an adequate
factual basis. Rule 11(f) obligates the district court to question
a defendant or examine the record to satisfy itself that an
adequate factual basis for a guilty plea exists. United States v.
Adams, 961 F.2d 505, 508 (5th Cir. 1992) (per curiam).
In this case, the Assistant United States Attorney (“AUSA”)
summarized the factual basis for Williams’s guilty plea. The AUSA
stated that Williams participated in a crack cocaine conspiracy by
acting as a “runner” between drug sellers in Bryan and College
Station, Texas and drug distributors in Houston, Texas. The AUSA
explained that Williams had admitted his role in the offense and
that surveillance would independently establish Williams’s role.
Williams acknowledged the truth of the government’s
description of the events. When the district court subsequently
asked Williams if he had intended to commit the acts to which he
had admitted, Williams responded, “I didn’t mean to do it.” The
district court reiterated its question, and Williams responded that
the facts recited by the government were true and that he had
intended to commit the acts described. As a result, the district
court found that an adequate factual basis supported the plea. Our
review of the record supports the district court’s conclusion that
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an adequate factual basis supported Williams’s guilty plea.
Williams next argues that the district court erred in its
calculation of the quantity of narcotics attributable to him for
sentencing purposes because the quantity attributed to him was not
foreseeable. We generally review for clear error a district
court’s factual findings regarding the quantity of drugs
attributable to the defendant for sentencing purposes. United
States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). However,
because Williams failed to object to the district court’s drug
quantity finding, we will not reverse unless we find plain error.
United States v. Ruiz, 43 F.3d 985, 988 (5th Cir. 1995); Fed. R.
Crim. P. 52(b). To be “plain,” an error must be so conspicuous
that the trial judge and prosecutor were derelict in countenancing
it, even absent the defendant’s timely assistance in detecting it.
Ruiz, 43 F.3d at 992.
Without making separate findings regarding the drug quantity
attributable to Williams, the district court adopted the probation
officer’s recommendation in the Presentence Report (“PSR”) that the
same amount of crack cocaine be attributed to Williams for
sentencing purposes as was attributed to Melvin Smith, the leader
and organizer of the group of drug dealers. The court also adopted
the statement in the PSR that Williams made at least four trips on
Smith’s behalf to retrieve powder cocaine from codefendant Domingo
Rodriguez. In light of Williams’s failure to object, we find no
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plain error in the district court’s drug quantity finding. See
United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993) (per
curiam) (“[Q]uestions of fact capable of resolution by the district
court upon proper objection at sentencing can never constitute
plain error.”), cert. denied, 511 U.S. 1042, 114 S. Ct. 1565, 128
L. Ed. 2d 211 (1994); see also Ruiz, 43 F.3d at 991 (“[W]e have
consistently held that the failure of the district court to make
findings was not error in the absence of a timely objection by the
defendant.”).
Counsel points to two other possible issues for appeal.
First, counsel notes that the district court rejected Williams’s
request for a decrease in his total offense level for acceptance of
responsibility. The defendant bears the burden of demonstrating
that he is entitled to the reduction for acceptance of
responsibility, and we review the sentencing court’s determination
with even more deference than the “clearly erroneous” standard.
United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996) (per
curiam), cert. denied, __ U.S. __, 117 S. Ct. 1097, 137 L. Ed. 2d
229 (1997). The entry of a guilty plea does not entitle a
defendant to a reduction for acceptance of responsibility as a
matter of right. Id.
Here, the district court adopted the probation officer’s
recommendation in the PSR that Williams not receive a downward
adjustment for acceptance of responsibility. The probation officer
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based this recommendation on the fact that Williams had sent
letters to the United States Probation Office in which he denied
transporting drugs for anyone and asserted that he had only cleaned
automobiles for Melvin Smith. Williams did not offer any evidence
rebutting the findings contained in the PSR. The district court
was thus free to adopt the findings in the PSR without further
inquiry or explanation. See Vital, 68 F.3d at 120 (“[I]f no
relevant affidavits or other evidence is submitted to rebut the
information contained in the PSR, the court is free to adopt its
findings without further inquiry or explanation.”). Under these
circumstances, the district court did not err in denying Williams
a reduction for acceptance of responsibility.
Counsel also points to the district court’s denial of
Williams’s motion to disregard the statutory mandatory minimum
sentence pursuant to the “safety valve” provision in USSG § 5C1.2
as an arguable issue for appeal. We review a district court’s
refusal to apply § 5C1.2 for clear error. United States v.
Rodriguez, 60 F.3d 193, 195 n.1 (5th Cir.), cert. denied, __ U.S.
__, 116 S. Ct. 542, 133 L. Ed. 2d 446 (1995).
Section 5C1.2 is a “safety valve” provision which allows
qualified defendants to escape the applicable statutory minimum
sentence. United States v. Edwards, 65 F.3d 430, 433 (5th Cir.
1995). Section 5C1.2 allows this relief only if the defendant
meets five criteria:
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(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do so)
in connection with the offense;
(3) the offense did not result in death or serious
bodily injury to any person;
(4) the defendant was not an organizer, leader, or
supervisor of others in the offense, as determined under
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing,
the defendant has truthfully provided to the government
all information and evidence the defendant has concerning
the offense or offenses that were part of the same course
of conduct or of a common scheme or plan, but the fact
that the defendant has no relevant or useful information
shall not preclude a determination by the court that the
defendant has complied with this requirement.
Id.
Here, it is undisputed that Williams satisfied the first four
requirements for application of § 5C1.2. The record contains no
evidence, however, that Williams attempted to provide any
information to the government.2 As a result, the district court
2
The appendix attached to Williams’s supplemental brief contains a
letter to Williams from his attorney. In this letter, in which counsel notified
Williams of the filing of the Anders motion, counsel states: “I must advise you
that on the issue of the application of the safety valve, I failed to ensure that
the record contained affirmatively my discussion with [AUSA] Tom Meehan wherein
I indicated your willingness to speak with the government. Mr. Meehan’s response
was that the government was not interested. I am prepared to provide you with
an affidavit to this effect should you make a decision to file an application for
post-conviction relief under 28 U.S.C. § 2255.”
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did not err in denying Williams’s § 5C1.2 motion.3
Williams last argues that he received ineffective assistance
of counsel during the plea proceedings. Williams did not raise
this issue in district court and therefore cannot raise it on
direct appeal. See United States v. Price, 95 F.3d 364, 369 (5th
Cir. 1996) (per curiam) (“Because Price’s claim of ineffective
assistance of counsel was not raised below so that an adequate
record could be developed, this claim must be dismissed without
prejudice to his right to raise it in a future section 2255
proceeding.”).
III
Based on the foregoing, we find no meritorious issues to
support Williams’s appeal. We therefore GRANT counsel’s request to
withdraw and DISMISS Williams’s appeal. We GRANT Williams’s motion
for leave to file his supplemental brief.
3
Counsel contends that Williams waived his right to appeal his
sentence. The waiver-of-appeal provision in Williams’s plea agreement states
that Williams was
aware that Title 18, United States Code, Section 3742 affords a
defendant the right to appeal the sentence imposed. Knowing that,
the defendant waives the right to appeal the sentence (or the manner
in which it was determined) except that the defendant reserves the
right to appeal for the following reasons only:
(1) The sentence was imposed in violation of law;
(2) The sentence was imposed as a result of an
incorrect application of the sentencing guidelines.
Because we have found that the district court committed no errors in sentencing
Williams, we need not determine the scope of this waiver-of-appeal provision.
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