IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60442
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS RAY BREWSTER, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
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March 24, 1998
Before HIGGINBOTHAM and STEWART, Circuit Judges, and WALTER,*
District Judge.
DONALD E. WALTER, District Judge:
Defendant-Appellant Carlos Ray Brewster, Jr., pleaded guilty
to possession with intent to distribute 468.3 grams of cocaine
base. The district court sentenced Brewster to 262 months
imprisonment, five years supervised release, and a fine of
$3,000. Brewster raises five issues on appeal: (1) the district
court improperly sentenced him under the enhanced crack cocaine
provision of the Sentencing Guidelines; (2) he did not knowingly
and voluntarily enter his guilty plea; (3) the district court
*
District Judge of the Western District of Louisiana, sitting
by designation.
erred in denying his motion to withdraw his guilty plea; (4) he
should not have been classified as a career offender under the
Sentencing Guidelines; and (5) he was denied effective assistance
of counsel at his guilty plea hearing. For the reasons that
follow, we affirm.
I. BACKGROUND
In January 1995, Jackson police officers, working with an
informant, arranged a drug transaction with Brewster. After the
informant identified Brewster, the officers arrested him and
seized 468.3 grams of cocaine base. In April 1995, Brewster
signed a Memorandum of Understanding outlining his plea agreement
and entered a guilty plea to possession with intent to distribute
468.3 grams of cocaine base in violation of 21 U.S.C. §
841(a)(1).
At his plea hearing, Brewster announced he was unsatisfied
with his retained attorney, Chris Ganner. After an off-the-
record conversation among Brewster, Ganner, and the Assistant
United States Attorney, Brewster told the district court that he
had no complaints with Ganner. The hearing resumed and Brewster
pled guilty. During the hearing, the substance seized from
Brewster was referred to as “cocaine base” aside from one
ambiguous reference to “crack” by Brewster.2 The court informed
2
When asked by the district judge if he knew the controlled
substance was cocaine base, Brewster stated, “Okay. I don’t know
how you guys say cocaine base, because powder rocked up—— I mean
cooked, but like in big cities, they do have crack, but crack is
not cocaine. Cocaine, that’s powder that’s cooked up. It’s a
lot of stuff added, but——.” The district judge then asked
Brewster if he contested the lab report finding of “468.3 grams
of cocaine base at an 81 percent purity” and Brewster
Brewster that the maximum and minimum sentence for the offense
was not less than ten years or more than life imprisonment, a
fine of $4,000,000, or both.
After the hearing, Brewster discharged Ganner. With new
counsel, Brewster moved to withdraw his guilty plea at his
sentencing hearing in July 1995. The district court denied the
motion, and proceeded with sentencing, applying a base offense
level of 34 under § 2D1.1 of the Sentencing Guidelines, as the
offense involved 468.3 grams of cocaine base. The court
increased Brewster’s offense level to 37, with a criminal history
category of VI, after concluding that he was a career offender
pursuant § 4B1.1. The court then applied a three-level reduction
for acceptance of responsibility pursuant to § 3E1.1(a) & (b),
thereby reducing the offense level to 34. Based on the total
offense level of 34 and a criminal history category of VI, the
Sentencing Guideline range of imprisonment is 262 to 327 months.
Following the government’s recommendation, the court sentenced
Brewster to 262 months. Additionally, the court imposed five-
years supervised release, a partial fine of $3,000, and a $50
special assessment fee.
II. ANALYSIS
A. Cocaine Base
Section 2D1.1 of the Sentencing Guidelines prescribes
enhanced punishments for persons convicted of crimes involving
responded “no.” Supp. Record on Appeal, vol. 1, p. 20.
3
cocaine base rather than powder cocaine. Brewster argues that
the enhanced cocaine base guideline is inapplicable to his case,
as the record lacks proof that the substance involved is actually
“crack.”
Brewster raises this issue for the first time on appeal.
As such, we review only for plain error. United States v. Spires,
79 F.3d 464, 465 (5th Cir. 1996). Plain error is established
when there is an error that is clear and obvious, and that error
affects substantial rights of the appellant. United States v.
Cerverizzo, 74 F.3d 629, 631 (5th Cir. 1996). A plain error must
be clear under current law at the time of trial. United States v.
Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508
(1993).
Effective November 1, 1993, the Sentencing Guidelines were
amended to include the following definition of cocaine base:
“Cocaine base,” for the purposes of this guideline, means
“crack.” “Crack” is the street name for a form of cocaine
base, usually prepared by processing cocaine hydrochloride
and sodium bicarbonate, and usually appearing in a lumpy,
rocklike form.
USSG § 2D1.1, Note D. In light of this definition and the
absence of proof in the record that the cocaine base he possessed
was actually crack, Brewster contends that he erroneously
received an enhanced sentence for crack cocaine.
The penalty imposed for possession with intent to distribute
cocaine, is far less than that imposed for cocaine base.
Although the district judge explained and the Memorandum of
Understanding outlined the minimum and maximum penalty for the
4
quantity of cocaine base he possessed, Brewster never objected
that the penalty was too high. Moreover, although the base
offense level is lower for cocaine, Brewster did not object at
sentencing when the district court applied the higher offense
level for cocaine base. Brewster had the benefit of different
counsel for his plea and sentencing hearings, yet neither
objected that the cocaine sentencing provisions applied instead
of the cocaine base provisions.
The record shows that Brewster was aware that he was charged
with, was pleading guilty to, and was sentenced for possession
with intent to distribute cocaine base (“crack”). In fact, the
record indicates that Brewster fully understood that the enhanced
crack cocaine guideline applied to his case.3 The law is clear
that for purposes of the Sentencing Guidelines, “cocaine base”
means “crack.” We find no plain error with the district court’s
decision to sentence Brewster under the cocaine base guidelines.4
3
At his sentencing hearing, Brewster asked the district judge
whether the Sentencing Commission’s recommended changes to the
Sentencing Guidelines, pending before Congress at that time,
would apply to his case: “[I]f that crack law comes in, that
powder law, couldn’t I get under that?” The district judge
responded, “Now, on this other matter about your sentence under
crack cocaine, if there is a change in the guidelines, then the
next question would be whether that change is to be applied
prospectively only or whether it could be applied retroactively.”
Supp. Record on Appeal, vol. 2, pp. 30 & 33.
4
Brewster contends that the Third Circuit’s holding in United
States v. James, 78 F.3d 851 (3d Cir. 1996), should apply to his
case. The court in James held that the enhanced crack cocaine
sentencing provisions did not apply without government proof, by
a preponderance of the evidence, that the cocaine base is
actually crack. 78 F.3d at 858. This issue was presented to the
sentencing court in the form of James’ argument that only a
5
To avoid similar disputes in the future, district judges should
make clear on the record that the crime charged as cocaine base
is “crack.”
B. Knowing and Voluntary Plea
We apply a “harmless error” analysis when an appellant
claims that the district court failed to comply with Federal Rule
of Criminal Procedure 11: (1) Did the sentencing court vary from
the procedures required by Rule 11, and (2) if so, did such
variance affect the defendant’s substantial rights? United States
v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993).
Brewster claims that his guilty plea was unknowing and
involuntary, as the district court did not properly advise him of
the mandatory minimum and maximum sentence pursuant to Rule
11(c). Brewster argues that the court erroneously advised him of
the mandatory minimum sentence for crack cocaine. As we find
that the district court correctly applied the cocaine base
guideline, a thorough review of the record reveals that the
district court properly explained the statutory minimum and
maximum sentence and plea consequences as required under Rule 11.
C. Motion to Withdraw Plea
A defendant has no absolute right to withdraw a guilty plea;
however, the district court may permit withdrawal before
sentencing upon a showing of a “fair and just reason.” United
sodium bicarbonate form of cocaine base is subject to the
sentencing enhancements. 78 F.3d at 857. In the instant case,
however, we review Brewster’s claim only for plain error, as it
is presented for the first time on appeal.
6
States v. Still, 102 F.3d 118, 123-24 (5th Cir. 1996), cert.
denied, --- U.S. ---, 118 S.Ct. 43, 139 L.Ed.2d 10 (1997);
FED.R.CRIM.P. 32(e). The district court’s decision is
discretionary and will not be disturbed, absent an abuse of
discretion. Id. at 123. Factors to consider when applying this
standard of a fair and just reason are whether: (1) the defendant
has asserted his innocence; (2) withdrawal will prejudice the
government; (3) the defendant delayed in filing his withdrawal
motion; (4) withdrawal would substantially inconvenience the
court; (5) close assistance of counsel was available to a
defendant; (6) the plea was knowing and voluntary; and (7)
withdrawal would waste judicial resources. United States v. Carr,
740 F.2d 339, 343-44 (5th Cir. 1984), cert. denied, 471 U.S.
1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). The district court
is not required to make findings as to each of the Carr factors.
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). The
decision to permit or deny withdrawal is based on the totality of
the circumstances. Still, 102 F.3d at 124. Finally, the burden
of establishing a fair and just reason for withdrawing a guilty
plea rests with the defendant. Id.
Brewster moved to withdraw his guilty plea at the sentencing
hearing, more than three months after his plea. Brewster
asserted three reasons for withdrawal: first, he claimed
ineffective assistance of counsel concerning advice of the effect
of his plea and his possible sentence; second, he claimed that
the Assistant United States Attorney threatened him with an
7
increased sentence if he did not plead; and third, he claimed
that he was not guilty. Concerning Brewster’s first two reasons
for withdrawal, the district court specifically found that
Brewster was advised of the statutory minimum and maximum
sentence.5 The district court also found that Brewster’s claim
regarding the government’s alleged threats lacked credibility.
Finally, Brewster’s belated claim of innocence is far from
sufficient to overturn the denial of withdrawal motion. Carr, 740
F.2d at 344.
The record indicates that the Carr factors support the
district court’s denial of Brewster’s motion to withdraw his
guilty plea. We find no abuse of discretion.
D. Career Offender
The district court’s determination that Brewster is a career
offender under § 4B1.1 of the Sentencing Guidelines is subject to
de novo review. United States v. Garcia, 962 F.2d 479, 481 (5th
Cir. 1992), cert. denied, 506 U.S. 902, 113 S.Ct. 293, 121
L.Ed.2d 217 (1992).6 Brewster specifically objects to the
district court’s finding that he meets the requirement of having
5
The district court was not aware of Brewster’s status as a
career offender at the time of the plea. The court’s failure to
advise Brewster of the application of the career offender
guideline, USSG § 4B1.1, when taking his plea does not violate
FED.R.CRIM.P. 11(c)(1). United States v. Pearson, 910 F.2d 221,
223 (5th Cir. 1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 977,
112 L.Ed.2d 1062 (1991).
6
The government contends this issue is presented for the
first time on appeal; however, Brewster raised this issue at his
sentencing hearing. Supp. Record on Appeal, vol. 2, pp. 21-22.
8
“at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” USSG § 4B1.1.7
Brewster contends that the prior offenses were part of a single
common scheme or plan to traffic in drugs.
Section 4B1.2(3) defines “two prior felony convictions” and
provides that § 4A1.1(a)-(c) govern whether the prior sentences
will be counted separately. In unrelated cases, prior sentences
are counted separately while in related cases, prior sentences
are treated as one sentence. USSG § 4A1.2(a)(2). The official
commentary of § 4A1.2 provides, in pertinent part:
Prior sentences are not considered related if they were for
offenses that were separated by an intervening arrest (i.e.,
the defendant is arrested for the first offense prior to
committing the second offense). Otherwise, prior sentences
are considered related if they resulted from offenses that
(1) occurred on the same occasion, (2) were part of a single
common scheme or plan, or (3) were consolidated for trial or
sentencing.
USSG § 4A1.2, comment (n. 3). The first sentence of this comment
was added by amendment, effective November 1, 1991. Because the
felony convictions characterizing Brewster as a career offender
were committed prior to this amendment, Brewster contends
application of the amendment to his case violates the ex post
facto clause of the United States Constitution.
Section 1B1.11 instructs courts to apply the Sentencing
Guidelines in effect on the date of sentencing. However, if the
7
The other two elements of a career offender are “(1) the
defendant was at least eighteen years old at the time of the
instant offense,” and “(2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense.” USSG § 4B1.1.
9
guidelines violate the ex post facto clause, the court shall use
the Sentencing Guidelines in effect “on the date that the offense
of conviction was committed.” USSG § 1B1.11(b)(1). The offense
of conviction was committed and sentencing occurred for Brewster
in 1995. Under § 1B1.11, the guideline comment of § 4A1.2
applies regardless of an ex post facto determination by this
court. The government proved an intervening arrest at Brewster’s
sentencing; thus, the prior sentences are considered unrelated.8
We conclude that the district court correctly determined
Brewster’s status as a career offender.9
E. Ineffective Assistance of Counsel
Brewster contends that he was denied his Sixth Amendment
right to effective assistance of counsel in evaluating his plea
options.10 At his plea and sentencing hearings, Brewster
8
Brewster originally denied the intervening arrest and
conviction in his objections to the presentence investigation
report. At his sentencing hearing, the government offered court
documents for the contested proceeding, photographs of Brewster
taken on the dates of the contested arrest and sentencing, and
fingerprint cards taken on the date of the contested arrest.
Brewster did not object to the evidence. Supp. Record on Appeal,
vol. 2, pp. 22-26.
9
Regardless of the application of the amended commentary to §
4A1.2, Brewster qualifies as a career offender. The presentence
investigation report reveals that each prior conviction was for a
separate drug transaction. In United States v. Garcia, 962 F.2d
479, 482 (5th Cir. 1992), cert. denied, 506 U.S. 902, 113 S.Ct.
293, 121 L.Ed.2d 217 (1992), this court reviewed a similar
argument and found that “[a]lthough the crimes may have been
temporally and geographically alike, they were not part of a
common scheme or plan that would preclude imposition of career
offender status.”
10
Brewster’s appeal captions this argument as ineffective
assistance of counsel at the plea and sentencing hearings.
10
commented to the court that he did not receive adequate
assistance from Ganner, his first retained counsel. Brewster’s
claim of ineffective assistance is based upon: the conversation
among Brewster, Ganner, and the Assistant United States Attorney
held off-the-record at the plea hearing; and conversations with
Ganner prior to the plea hearing. The record does not
sufficiently establish the substance of these conversations.
“The general rule in this circuit is that a claim of
ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been before the district court
since no opportunity existed to develop the record on the merits
of the allegation.” United States v. Thomas, 12 F.3d 1350, 1368
(5th Cir. 1994), cert. denied, 511 U.S. 1095, 114 S.Ct. 1861, 128
L.Ed.2d 483 (1994), and cert. denied, 511 U.S. 1114, 114 S.Ct.
2119, 128 L.Ed.2d 676 (1994)(citation omitted). We decline to
reach the merits of Brewster’s ineffective assistance of counsel
claim, as the record is not well developed for review. Brewster
may raise this claim by motion under 28 U.S.C. § 2255.
III. CONCLUSION
For the foregoing reasons, we find the district court
committed no plain error when it applied the cocaine base
guideline. However, we stress that district judges should
clearly find, on the record, that the cocaine base involved is in
fact “crack.” It is clear from the record that the district
However, Brewster only argues ineffective assistance of counsel
with regard to his plea. As such, we only address his claim of
ineffective assistance of counsel at his plea hearing.
11
court complied with Rule 11 and did not abuse its discretion in
denying Brewster’s motion to withdraw his guilty plea. Also, we
find that the district court did not err in determining Brewster
to be a career offender under the Sentencing Guidelines.
Accordingly, Brewster’s conviction is AFFIRMED.
STEWART, Circuit Judge, concurring in the judgment only:
12