UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN MCDOWELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-00711-HFF-7)
Submitted: April 16, 2010 Decided: June 17, 2010
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Timothy Ward Murphy, LAW OFFICE OF WADE S. KOLB, JR., Sumter,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin McDowell appeals from the 180-month sentence
imposed following his guilty plea, pursuant to a written plea
agreement, to one count of conspiracy to distribute five
kilograms or more of cocaine and fifty grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846
(2006). McDowell’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether: (1) the
district court complied with Federal Rule of Criminal Procedure
11 (“Rule 11”) in accepting McDowell’s guilty plea; (2) the
record conclusively shows McDowell received ineffective
assistance of counsel; and (3) McDowell was properly designated
as a career offender. McDowell was advised of his right to file
a pro se brief, but has not done so. We affirm the conviction,
vacate the sentence, and remand for resentencing.
Prior to accepting a defendant’s guilty plea, Rule
11(b)(1) requires the district court to address the defendant in
open court and ensure he understands: the nature of the charge
against him; any mandatory minimum sentence; the maximum
possible sentence, including imprisonment, fine, and term of
supervised release; the mandatory special assessment; the
applicability of the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) and their advisory nature; his
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right to an attorney at all stages of the proceedings; his right
to plead not guilty; his right to a jury trial with the
assistance of counsel; his right to confront and cross-examine
witnesses; his right to testify on his own behalf as well as his
right against self-incrimination; any waiver provision in the
plea agreement; the court’s authority to order restitution; any
applicable forfeiture; and the government’s right to use any of
his statements under oath in a perjury prosecution. Fed. R.
Crim. P. 11(b)(1). The district court must also inform the
defendant that he may not withdraw his guilty plea once the
court accepts it and imposes a sentence. Fed. R. Crim. P.
11(e). Additionally, the district court must “determine that
there is a factual basis for the plea.” Fed. R. Crim. P.
11(b)(3). Finally, the district court must ensure the
defendant’s plea was voluntary and did not come about as a
result of force, threats, or promises. Fed. R. Crim. P.
11(b)(2).
Because McDowell did not move to withdraw his guilty
plea in the district court or raise any objections to the Rule
11 colloquy, we review the colloquy for plain error. United
States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); United
States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To
demonstrate plain error, McDowell must show “that error
occurred, that the error was plain, and that the error affected
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his substantial rights.” General, 278 F.3d at 393 (internal
quotation marks omitted). McDowell does not specify any errors
in the plea colloquy and our review of the record reveals that
the district court substantially complied with the requirements
of Rule 11. Therefore, we find that McDowell’s guilty plea was
knowing and voluntary.
Counsel also questions whether the record conclusively
establishes that McDowell’s trial counsel was ineffective. A
defendant may raise a claim of ineffective assistance of counsel
“on direct appeal if and only if it conclusively appears from
the record that his counsel did not provide effective
assistance.” United States v. Martinez, 136 F.3d 972, 979 (4th
Cir. 1998). To prove ineffective assistance the defendant must
satisfy two requirements: (1) “that counsel’s representation
fell below an objective standard of reasonableness” and
(2) “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). In the context of a guilty plea, “the
defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985).
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McDowell has not specified how counsel was ineffective
beyond the conclusory allegation in the Anders brief. Moreover,
McDowell indicated at the plea hearing that he had ample
opportunity to speak with counsel and was fully satisfied with
counsel’s services. Therefore, we find that the record does not
conclusively establish that McDowell received ineffective
assistance of trial counsel.
Finally, because the Government has not sought
enforcement of the waiver provision in the plea agreement, we
next consider McDowell’s challenge to his career offender
designation. In assessing the district court’s application of
the Guidelines, including any sentencing enhancements, we review
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Layton, 564 F.3d
330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).
To qualify as a career offender: (1) the defendant
must have been at least eighteen years old at the time of the
offense of conviction; (2) the offense of conviction must have
been a felony crime of violence or controlled substance offense;
(3) and the defendant must have at least two prior felony
convictions for crimes of violence or controlled substance
offenses. U.S.S.G. § 4B1.1(a). According to the Presentence
Investigation Report, McDowell had two predicate convictions:
one for distribution of cocaine and one for failure to stop for
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a blue light in violation of South Carolina Code § 56-5-750
(2006). However, counsel argues that McDowell should not be
considered a career offender because his conviction for failure
to stop for a blue light was not a crime of violence.
Because the language of U.S.S.G. § 4B1.2(a) defining a
crime of violence is almost identical to the language in the
Armed Career Criminal Act (“ACCA”) defining a violent felony,
“our reasoning regarding the meaning of ‘violent felony’ is
relevant to determining the meaning of ‘crime of violence.’”
United States v. Johnson, 246 F.3d 330, 333 n.5 (4th Cir. 2001).
Recently we held that, because a violation of the South Carolina
blue light statute is a strict liability crime, “under no
circumstance” is such a violation “a violent felony under the
ACCA.” United States v. Rivers, 595 F.3d 558, 560 (4th Cir.
2010). In light of Rivers, we conclude that McDowell’s
conviction for failure to stop for a blue light is not a
predicate offense for purposes of the career offender
enhancement. Therefore, the district court erred in overruling
McDowell’s objection. Additionally, because McDowell was
improperly designated a career offender, we find that the
district court committed significant procedural error by failing
to properly calculate the applicable Guidelines range. See
Gall v. United States, 552 U.S. 38, 51 (2007).
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In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm McDowell’s conviction, but vacate his sentence
and remand for resentencing. 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 IN PART,
VACATED IN PART,
AND REMANDED
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