United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-51337
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN DALE SHANKLIN,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-64-ALL
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Before DAVIS, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Steven Dale Shanklin appeals his guilty-plea conviction and
sentence for tax evasion. He has filed a motion for release
pending appeal and a motion for expedited consideration of his
motion for release pending appeal.
Shanklin argues that the district court abused its
discretion by denying his motion to withdraw guilty plea. For
the first time in his reply brief, he maintains that the district
*
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this opinion should not be published and is not precedent except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.
No. 05-51337
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court erred by allowing him less than two minutes to present
argument in support of his motion to withdraw guilty plea.
Shanklin did not unequivocally assert his innocence when
arguing his motion to withdraw guilty plea and, at rearraignment,
Shanklin unequivocally admitted, under oath, that he was guilty
and that his plea was knowing and voluntary. See United States
v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (citation
omitted) (strong presumption of validity to declarations under
oath in open court). Additionally, Shanklin waited until the day
of the second sentencing hearing, more than four months after the
entry of his guilty plea, to move to withdraw the guilty plea.
See United States v. Grant, 117 F.3d 788, 790 (5th Cir. 1997)
(withdrawal of guilty plea at sentencing inconveniences court and
wastes judicial resources). Given the totality of the
circumstances, Shanklin has not shown that the district court
abused its discretion by denying his motion to withdraw guilty
plea.** See United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003).
For the first time on appeal, Shanklin argues that the
district court plainly erred by denying his motion to withdraw
guilty plea because he did not waive his right to a jury trial in
writing as required by FED. R. CRIM. P. 23(a)(1). Because
**
We do not consider Shanklin’s assertion that he was not
given enough time to present argument in support of his motion to
withdraw guilty plea because it was raised for the first time in
his reply brief. See United States v. Prince, 868 F.2d 1379,
1386 (5th Cir. 1989).
No. 05-51337
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Shanklin did not raise this issue below, we review for plain
error. See United States v. Hull, 160 F.3d 265, 271 (5th Cir.
1998). Shanklin’s guilty plea waived his right to a trial by
jury. See United States v. Robertson, 698 F.2d 703, 707 (5th
Cir. 1983). Thus, Shanklin was not “entitled to a jury trial”
and the requirement that a jury trial waiver be in writing was
inapplicable. See FED. R. CRIM. P. 23(a). Accordingly, the
district court did not commit error under FED. R. CRIM. P. 23(a),
plain or otherwise, by denying Shanklin’s motion to withdraw
guilty plea.
For the first time on appeal, Shanklin argues that the
district court plainly erred by denying his motion to withdraw
guilty plea because his plea agreement contained a binding
sentencing recommendation pursuant to FED. R. CRIM. P. 11(c)(1)(C)
and the district court allegedly violated FED. R. CRIM. P.
11(c)(5)(B) by rejecting the agreement without allowing him the
opportunity to withdraw his guilty plea. Alternatively, Shanklin
maintains that if the sentencing recommendation was non-binding
pursuant to FED. R. CRIM. P. 11(c)(1)(B), the district court
plainly erred by not advising him at rearraignment that he had no
right to withdraw his guilty plea if it did not follow the
recommendation as required by FED. R. CRIM. P. 11(c)(3)(B).
The stipulation between Shanklin and the Government
regarding the total tax loss under U.S.S.G. §§ 2T1.1 and 2T4.1
specifically stated that it was not binding on the district
No. 05-51337
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court. Accordingly, the recommendation was a non-binding
recommendation pursuant to FED. R. CRIM. P. 11(c)(1)(B).
At rearraignment, the district court did not advise Shanklin
that he had no right to withdraw his guilty plea if it did not
follow the recommendation in the plea agreement as required by
FED. R. CRIM. P. 11(c)(3)(B). Because Shanklin did not raise any
objections during rearraignment, we review for plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002). At rearraignment,
the district court advised Shanklin that the Guidelines were
advisory and that he could receive a sentence as high as the
statutory maximum. Furthermore, the plea agreement clearly
stated that the recommendation was not binding. Thus, the
district court’s error could not have materially affected his
decision to plead guilty and was not plain error. See United
States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en banc).
For the first time on appeal, Shanklin argues that the
district court’s denial of his motion to withdraw guilty plea
violated his Fifth Amendment right to due process and his Sixth
Amendment right to a jury trial. We review this contention for
plain error. See Hull, 160 F.3d at 271. The Fifth Amendment did
not bar Shanklin’s guilty plea, and Shanklin did not have an
absolute right to withdraw his guilty plea. See Brady v. United
States, 397 U.S. 742, 753 (1970) (Fifth Amendment does not bar
guilty pleas); Powell, 354 F.3d at 370 (no absolute right to
withdraw guilty plea). Shanklin’s Sixth Amendment right to a
No. 05-51337
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jury trial was waived by his guilty plea. See Robertson, 698
F.2d at 707.
Shanklin argues that the district court erred by denying his
request to represent himself at sentencing. A criminal defendant
has a Sixth Amendment right to represent himself as well as a
statutory right. Faretta v. California, 422 U.S. 806, 819-34
(1975); 28 U.S.C. § 1654. The district court’s ruling on
Shanklin’s self-representation request, however, was ambiguous,
and the district court allowed Shanklin to conduct his own
defense at sentencing. Shanklin’s counsel remained present to
consult with Shanklin if Shanklin requested and did not interject
anything into Shanklin’s defense against his will. At most, the
district court required Shanklin’s counsel to function as standby
counsel against Shanklin’s wishes, and this did not violate
Shanklin’s right to represent himself. See McKaskle v. Wiggins,
465 U.S. 168, 184 (1984).
Shanklin argues that he received ineffective assistance of
counsel in the district court. Although Shanklin argued, in
support of his motion to withdraw guilty plea and his request to
represent himself, that his counsel had been ineffective, neither
Shanklin nor his counsel testified under oath regarding
Shanklin’s ineffective-assistance allegations. Furthermore, the
district court did not make any factual findings on the
allegations. Because the record is not sufficiently developed
for this court to consider Shanklin’s ineffective assistance of
No. 05-51337
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counsel claim, we deny the claim without prejudice to Shanklin’s
right to raise it in a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. See United States v.
Kizzee, 150 F.3d 497, 502-03 (5th Cir. 1998). We express no view
on the merits of such a motion.
Shanklin raises numerous procedural and substantive
challenges to his sentencing and the sentence imposed. Because
Shanklin did not raise his procedural challenges below, we review
for plain error. See United States v. Jones, 444 F.3d 430, 443
(5th Cir.), cert. denied, __ S. Ct. __, 2006 WL 1523778 (June 26,
2006) (No. 05-11153). Although the district court and the
Government discussed the terms of the plea agreement at the first
sentencing hearing, nothing in the record indicates that the
district court misrepresented the terms of the plea agreement or
held any incorrect views regarding those terms. While the
district court speculated at the second sentencing hearing that
Shanklin may have money hidden away, it specifically stated that
this possibility did not factor into its sentencing decision.
Shanklin does not indicate which disputed matters he asserts the
district court did not rule upon at sentencing in violation of
FED. R. CRIM. P. 32(i)(3)(B), and nothing in the record indicates
that the district court did not rule upon all disputed matters.
Accordingly, Shanklin has not shown that the district court
committed error, plain or otherwise, for these reasons.
No. 05-51337
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Contrary to Shanklin’s assertion, FED. R. CRIM. P. 32(h)
requires only that the parties receive reasonable notice that the
court is considering a departure from the guidelines sentence
range and the reason for the possible departure, not that written
notice be provided. Although the district court did give notice
that it was considering a sentence above the guidelines range at
the first sentencing hearing, it arguably did not give notice of
the specific grounds upon which it was considering imposing such
a sentence. However, assuming arguendo that the district court
violated FED. R. CRIM. P. 32(h), Shanklin has not shown that this
constituted plain error because he has not demonstrated how the
lack of sufficient notice prejudiced him or how he would have
responded differently had he been given proper notice. See
Jones, 444 F.3d at 443.
Shanklin’s uncontested guidelines sentence range was 15-21
months of imprisonment and the district court made an upward
deviation to the statutory maximum of 60 months of imprisonment
pursuant to the discretion granted to it in United States v.
Booker, 543 U.S. 220 (2005). The district court based its upward
deviation on the following fact-specific reasons: Shanklin’s
intelligence and his deliberate ignorance regarding the payment
of taxes; that Shanklin signed false withholding forms under
penalty of perjury; Shanklin’s failure to show remorse beyond the
remorse about his pending incarceration; that Shanklin did not
file tax returns in 2002, 2003, and 2004, even though he was
No. 05-51337
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already under investigation for tax evasion; and that a sentence
within the guidelines range would be insufficient deterrence
given the amount of taxes Shanklin failed to pay. These factors
were proper to consider as they related to “the nature and
circumstances of the offense and the history and characteristics
of the defendant,” the seriousness of the offense, and the need
to provide adequate deterrence. 18 U.S.C. § 3553(a)(1),
(a)(2)(A), and (a)(2)(B); see also United States v. Smith, 440
F.3d 704, 709 (5th Cir. 2006).
While the district court did consider Shanklin’s income,
this was in the context of the amount of taxes Shanklin failed to
pay and thus was consideration of Shanklin’s offense, not
impermissible consideration of Shanklin’s socio-economic status,
a prohibited factor under U.S.S.G. § 5H1.10. At worst, the
district court’s language was imprecise, and Shanklin has not
shown that the district court’s upward deviation was
impermissibly based upon his socio-economic status. Cf. United
States v. Humphrey, 104 F.3d 65, 71-72 (5th Cir. 1997)
(commenting about amount of money defendants obtained by fraud
and their inability to pay restitution did not clearly indicate
that district court considered socio-economic status of
defendants). Shanklin has not shown that the district court’s
decision to make an upward deviation from the guidelines range
was unreasonable. See Smith, 440 F.3d at 709.
No. 05-51337
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This court has recently noted that the extent of a deviation
is “of no independent consequence.” Id. at 709 n.5 (internal
quotation marks omitted). Furthermore, given Shanklin’s history
and characteristics, the seriousness of his offense conduct, and
the need for deterrence as found by the district court, the
extent of the deviation was not unreasonable. See
id. (collecting cases); United States v. Reinhart, 442 F.3d 857,
864 (5th Cir. 2006) (upward deviation from 151 months to 235
months is not presumptively unreasonable).
By rendering the Sentencing Guidelines advisory only, Booker
eliminated the Sixth Amendment concerns that prohibited a
sentencing judge from finding all facts relevant to sentencing.
United States v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert.
denied, S. Ct. , 2006 WL 1584471 (June 12, 2006) (No. 05-
10908); Mares, 402 F.3d at 519. Thus, contrary to Shanklin’s
assertion, while the district court based Shanklin’s sentence on
facts not proven to a jury or admitted by Shanklin, this was not
erroneous. See Johnson, 445 F.3d at 797-98.
Shanklin’s ex post facto argument is without merit. The
application of the Sentencing Guidelines as merely advisory does
not violate the Ex Post Facto Clause, even if the offense conduct
occurred prior to Booker. United States v. Scroggins, 411 F.3d
572, 575-76 (5th Cir. 2005); United States v. Austin, 432 F.3d
598, 599-600 (5th Cir. 2005).
No. 05-51337
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Using Rummel v. Estelle, 445 U.S. 263 (1980), as a
benchmark, Shanklin’s sentence of 60 months of imprisonment for
evading more than $400,000 in taxes was not “grossly
disproportionate.” See United States v. Gonzales, 121 F.3d 928,
943 (5th Cir. 1997). Thus, the sentence did not violate the
Eighth Amendment’s prohibition against cruel and unusual
punishment. See Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th
Cir. 1996).
AFFIRMED; MOTION FOR RELEASE PENDING APPEAL DENIED AS MOOT;
MOTION FOR EXPEDITED CONSIDERATION OF MOTION FOR RELEASE PENDING
APPEAL DENIED AS MOOT.