UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4142
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER RON HILL,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00081-WO-1)
Submitted: September 30, 2011 Decided: October 17, 2011
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jonathan Leonard, LEONARD LAW FIRM, Winston-Salem, North
Carolina, for Appellant. Clifton Thomas Barrett, Michael
Francis Joseph, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Ron Hill appeals the 300-month sentence
imposed following his guilty plea, pursuant to a written plea
agreement, to possession with intent to distribute cocaine base,
in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999 &
Supp. 2011). Counsel for Hill filed a brief in this court in
accordance with Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal but
questioning whether the district court erred in denying Hill’s
motions to withdraw his guilty plea and whether Hill’s sentence
is reasonable. Hill filed a pro se supplemental brief arguing
that (1) the district court erred in failing to dismiss the
indictment and relying on fabricated information to issue the
warrant and complaint; (2) the district court erred in denying
Hill’s motions to withdraw his guilty plea; (3) the district
court erred in sentencing Hill as a career offender; (4) the
Government breached the plea agreement; (5) Hill’s sentence
violates the FSA; and (6) trial counsel rendered ineffective
assistance. Counsel for Hill has now filed a motion to remand
the case, with the Government’s consent, for resentencing in
light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc). For the reasons that follow, we affirm in part,
vacate in part, grant the motion to remand, and remand for
resentencing.
2
We review for abuse of discretion a district court’s
denial of a motion to withdraw a guilty plea. United States v.
Dyess, 478 F.3d 224, 237 (4th Cir. 2007). A defendant seeking
to withdraw his guilty plea bears the burden of demonstrating
that withdrawal should be granted. Id. In deciding whether to
permit withdrawal, a district court should consider:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or voluntary;
(2)whether the defendant has credibly asserted his
legal innocence; (3) whether there has been a delay
between entry of the plea and filing of the motion;
(4) whether the defendant has had close assistance of
counsel; (5) whether withdrawal will cause prejudice
to the government; and (6) whether withdrawal will
inconvenience the court and waste judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
We conclude that the district court did not abuse its
discretion in denying Hill’s motion to withdraw his guilty plea.
The district court conducted a thorough and comprehensive
Federal Rule of Criminal Procedure 11 colloquy, and Hill’s
contentions that his indictment was based on a defective warrant
and that trial counsel rendered ineffective assistance were
meritless and did not undermine the validity of his guilty plea.
Further, Hill did not assert his legal innocence, and
significant time and resources had already been spent on his
case.
Because antecedent nonjurisdictional claims are not
cognizable on appeal, United States v. Moussaoui, 591 F.3d 263,
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279 (4th Cir. 2010), we decline to consider Hill’s claims that
the district court erred in failing to dismiss his indictment
because it was based on a defective complaint and in issuing an
arrest warrant based on falsified evidence. Additionally, we
hold that the Government did not breach Hill’s plea agreement by
failing to comply with a purported oral amendment to the written
agreement.
We further hold that Hill’s claim of ineffective
assistance is not ripe for review at this time as there is no
evidence on the record that counsel was ineffective. See United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Hill
may, should he wish to do so, assert his claim in an appropriate
motion for post-conviction relief. Accordingly, we affirm
Hill’s conviction.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d
572, 578 (4th Cir. 2010) (abuse of discretion standard of review
applicable when defendant properly preserves a claim of
sentencing error in district court “[b]y drawing arguments from
[18 U.S.C.] § 3553 [(2006)] for a sentence different than the
one ultimately imposed”). We must begin by reviewing the
sentence for significant procedural error, including such errors
as “failing to calculate (or improperly calculating) the
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Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51. If there are no
procedural errors, we then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Id.; United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007).
Initially, we note that the district court adequately
explained its reasons for the chosen sentence, considering both
parties’ arguments and the § 3553(a) factors, and did not err in
counting Hill’s consolidated prior convictions as two separate
convictions, see U.S. Sentencing Guidelines Manual (“USSG”)
§§ 4B1.2(c) (2010). 1 Nonetheless, we vacate Hill’s sentence and
grant his motion to remand for resentencing.
Hill was sentenced as a career offender based on four
prior North Carolina convictions deemed felonies consistent with
our decision in United States v. Harp, 406 F.3d 242, 246 (4th
Cir. 2005) (holding that in order to “determine whether a
1
We note, however, that only one of the three consolidated
convictions was separated by an intervening arrest. See USSG
§§ 4A1.1(a), (b), (c), 4A1.2(a)(2). Accordingly, if the
district court determines on remand that the conviction for
which a separate sentence was imposed does not qualify as a
felony, it may not consider the remaining consolidated
convictions separately. See id.
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conviction is for a crime punishable by a prison term exceeding
one year . . . [the court] consider[s] the maximum aggravated
sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history”). Subsequently,
however, we overruled Harp with our en banc decision in Simmons,
in which we held that a North Carolina offense may not be
classified as a felony based upon the maximum aggravated
sentence that could be imposed upon a repeat offender if the
defendant was not actually eligible for such a sentence. On
this record, it is impossible to determine whether Hill’s prior
convictions qualify as felonies under Simmons. Accordingly, we
grant Hill’s motion to remand, vacate his sentence, and remand
for resentencing in light of Simmons. 2
In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm Hill’s convictions, vacate Hill’s sentence, and
remand for resentencing in light of our decision in Simmons. In
doing so, we indicate no view as to whether Hill may be
classified as a career offender under Simmons, leaving that
determination in the first instance for the district court.
2
We of course fault neither the Government nor the district
court for relying on, and applying, unambiguous circuit
authority at the time of Hill’s sentencing.
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This court requires that counsel inform Hill, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Hill requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Hill.
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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