IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2009
No. 08-10457
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JASON TROWBRIDGE, also known as Jason from California, also known as
John from California, also known as Mr. Stoner,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-196-2
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jason Trowbridge appeals his guilty plea conviction for conspiracy to use
access devices to modify telecommunications instruments, to make unauthorized
access to protected telecommunications computers, to exceed authorized access
to protected computers, and to transmit threats in interstate commerce with
intent to extort. 18 U.S.C. §§ 371, 1029(a)(9), 1030(a)(5)(A)(ii), 1030(a)(2)(A),
875(d). Pursuant to a written plea agreement, Trowbridge waived his right to
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10457
appeal, except for an appeal of a sentence exceeding the statutory maximum
punishment, an arithmetic error at sentencing, a challenge to the voluntary
nature of his guilty plea or appeal waiver, or an ineffective assistance of counsel
claim.
For the first time on appeal, Trowbridge argues, through counsel, that his
guilty plea was involuntary because the district court failed to comply with the
requirements of F ED. R. C RIM. P. 11(c)(3)(B) and (c)(4) during the rearraignment
hearing. The Government has filed a motion to dismiss the appeal as frivolous.
Additionally, Trowbridge has filed his own motion, seeking to relieve appointed
counsel and have new counsel appointed.
First, Trowbridge asserts pro se that appointed counsel has failed to argue
specific claims on appeal and refused to communicate with him about appellate
matters. Counsel has filed no response to this motion, but filed a timely
appellate brief and response to the Government’s motion to dismiss. Appointed
counsel is not required to raise every claim suggested by his client and may use
professional judgment to select the most promising issues for review. See Jones
v. Barnes, 463 U.S. 745, 750-54 (1983). Furthermore, this court may substitute
one appointed counsel for another in the event of a conflict of interest, other
most pressing circumstances, or in the interests of justice. Fifth Circuit Plan
Under the C.J.A., § 5(B). Trowbridge has failed to meet this standard.
Accordingly, Trowbridge’s pro se motion to relieve appointed counsel and have
new counsel appointed is DENIED.
Second, this court can dismiss an appeal during consideration of an
interlocutory motion if the appeal “is frivolous and entirely without merit.” 5th
Cir. R. 42.2. As discussed below, Trowbridge’s appeal is not entirely without
merit. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983) (holding that
appeal is not frivolous if it involves legal points arguable on their merits); see
also Anders v. California, 386 U.S. 738, 744 (1967). As such, the Government’s
motion to dismiss the claim as frivolous is DENIED.
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No. 08-10457
Third, the Rule 11 argument raised by Trowbridge, through counsel, is
reviewed for plain error because no objection was raised in the district court. See
United States v. Vonn, 535 U.S. 55, 58-59 (2002). To show plain error,
Trowbridge must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
An error affects substantial rights when there exists a “reasonable probability
that, but for the error, [the defendant] would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In making this assessment,
we look to the entire record, not to the plea proceedings alone. Vonn, 535 U.S.
at 59. If Trowbridge makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett, 129 S. Ct. at 1429.
Trowbridge’s argument regarding the applicability of Rule 11(c)(3)(B) is
without merit as Rule 11(c)(3)(B) does not apply here. Trowbridge also argues
that the district court violated Rule 11(c)(4) when it failed to inform him that
“the agreed disposition” in the plea agreement would be included in the
judgment. There was no agreed disposition to add to the judgment as to any
remaining charges as Trowbridge pleaded guilty to the only count of a
superseding indictment. Even if the district court failed to comply with the
requirements of F ED. R. C RIM. P. 11(c)(4) insofar as the plea agreement provided
that the Government would not bring any other charges, there is nothing in the
record to indicate that the Government has filed or intends to file any other
charges against Trowbridge. Trowbridge has failed to show that, but for the
Rule 11 error, he would not have pleaded guilty. See Dominguez Benitez, 542
U.S. at 83. Accordingly, Trowbridge has failed to show that his plea was
unknowing and involuntary.
AFFIRMED.
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