[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 11, 2005
No. 03-16377
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00093-CR-1-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECIL RAY FRYE, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 11, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
We withdraw our previous opinion, which was published at United States v.
Frye, __ F.3d __, 2005 WL 315563 (11th Cir. Feb. 10, 2005), and substitute the
following judgment and opinion. We now dismiss the appeal of the alleged
sentencing errors based on the appeal waiver in the plea agreement.
This appeal presents four issues, the second of which is an issue of first
impression in the Eleventh Circuit: (1) whether Cecil Ray Frye Jr.’s guilty plea to
one count of conspiracy to manufacture methamphetamine under 21 U.S.C. section
846 and two counts of using or carrying a firearm in connection with a drug felony
under 18 U.S.C. section 924(c) was knowing and voluntary; (2) whether Frye was
properly convicted of the firearms charges under section 924(c) when he was not
convicted of the predicate offenses; (3) whether there was an insufficient factual
basis to support the firearms convictions; and (4) whether Frye’s sentence violated
United States v. Booker, 125 S. Ct. 738 (2005). We conclude that (1) Frye’s plea
was knowing and voluntary, (2) a conviction on the predicate offense is not
necessary for a conviction under section 924(c), (3) the firearms convictions are
supported by the record, and (4) Frye waived his right to appeal his sentence in his
plea agreement with the government. We, therefore, affirm the judgment of
conviction and dismiss the appeal of Frye’s sentence.
I. BACKGROUND
On May 29, 2003, Frye was charged by superseding indictment with seven
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counts related to drug trafficking and firearms possession, four counts of which are
relevant to this appeal. Count One of the indictment charged Frye with conspiracy
to manufacture more than 500 grams of methamphetamine. Count Four charged
Frye with an attempt to manufacture more than 50 grams of methamphetamine.
Count Five charged that during and in relation to the offense charged in Count
Four, Frye knowingly used, carried, and possessed a firearm, and Count Six
charged that during and in relation to the offense of attempting to manufacture
methamphetamine, Frye knowingly used, carried, and possessed a firearm. Count
Six did not reference any other count in the indictment.
Frye pleaded guilty to Counts One, Five, and Six, and the government
dismissed the remaining charges. The plea agreement contained a limited waiver
of the right to appeal the sentence with three exceptions:
20. The defendant acknowledges that he is aware that Title 18, United
States Code, Section 3742 affords a defendant the right to appeal his
sentence. In exchange for the recommendations made by the United
States in this agreement, the defendant knowingly waives the right to
appeal any sentence imposed in the instant case, except for those
rights specifically reserved in paragraph 22 below.
....
22. The defendant reserves the right to contest in any appeal or post-
conviction proceeding any of the following:
a. Any punishment imposed in excess of the statutory
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maximum;
b. Any punishment that constitutes an upward departure
from the guidelines range; or
c. A claim of ineffective assistance of counsel.
Before accepting the plea, the district court extensively questioned Frye in a
Rule 11 colloquy concerning his knowledge of the charges against him, the rights
he possessed as a criminal defendant, including the right to a jury trial, and the
consequences of pleading guilty, including the waiver of the right to appeal. Frye
then pleaded guilty. The district court determined that the plea was voluntary and
knowing, and it accepted the plea.
After the sentencing hearing, at which Frye stated that he had no objections
to the presentence investigation report that would affect the guideline calculations,
the district court sentenced Frye to a total term of 548 months’ imprisonment and
five years’ supervised release. Frye filed a timely notice of appeal.
II. STANDARD OF REVIEW
The voluntariness of a guilty plea is reviewed de novo. United States v.
Brown, 117 F.3d 471, 474 (11th Cir. 1997). We review issues of statutory
construction de novo. United States v. Mikell, 102 F.3d 470, 474 (11th Cir. 1996).
“[W]e will not overturn a judge’s decision to accept a guilty plea unless there has
been an abuse of discretion.” United States v. Owen, 858 F.2d 1514, 1516 (11th
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Cir. 1988).
III. DISCUSSION
“A plea of guilty cannot support a judgment of guilt unless it was voluntary
in a constitutional sense.” Brown, 117 F.3d at 476. A plea is voluntary in a
constitutional sense if the defendant receives real notice of the charge against him
and understands the nature of the constitutional protections he is waiving. Id. Frye
contests the knowing and voluntary nature of his guilty plea. We first, therefore,
determine whether Frye knowingly and voluntarily pleaded guilty. We then
address Frye’s remaining arguments on appeal.
To circumvent the detailed Rule 11 colloquy, Frye contends that the criminal
proceeding as a whole undermined the knowing and voluntary nature of his plea.
Specifically, Frye argues that the district court neglected to inquire adequately
concerning the motion to withdraw due to irreconcilable differences that Frye’s
counsel had filed the morning of the plea hearing. This argument fails.
To determine that a guilty plea is knowing and voluntary the district court
must establish that “(1) the guilty plea [is] free from coercion; (2) the defendant . . .
understand[s] the nature of the charges; and (3) the defendant . . . know[s] and
understand[s] the consequences of his guilty plea.” United States v. Mosely, 173
F.3d 1318, 1322 (11th Cir. 1999). Here the district court explicitly asked Frye
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about the motion to withdraw, and Frye responded that he was satisfied with his
representation and that the difficulty had passed. The district court further
discussed with Frye in detail the plea agreement, elements of each offense, burden
of proof, and consequences of pleading guilty. Frye stated under oath that he was
not coerced into pleading guilty, that he understood the charges and consequences
of pleading guilty, and that he pleaded guilty. The record shows that Frye
understood the charges against him and his options, and that he voluntarily and
knowingly pleaded guilty.
Second, Frye argues that he could not be convicted of using or carrying a
firearm in connection with a drug trafficking crime under 18 U.S.C. section 924(c)
because he was not convicted of the predicate drug offense for Count Five or
charged with the predicate offense for Count Six. Whether a defendant can be
found guilty under section 924(c) when he was not convicted of the predicate
offense or separately charged with the predicate offense is an issue of first
impression in this circuit. We hold that conviction under section 924(c) does not
require either that the defendant be convicted of or charged with the predicate
offense.
Section 924(c)(1)(A) makes it a crime for any person to use or carry a
firearm “during and in relation to any . . . drug trafficking crime . . . for which the
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person may be prosecuted in a court of the United States . . . .” 18 U.S.C. §
924(c)(1)(A). A “drug trafficking crime” includes any crime punishable under the
Controlled Substances Act, 21 U.S.C. section 801, et seq. 18 U.S.C. § 924(c)(2).
By its plain language, section 924 does not require that a defendant be convicted
of, or even charged with, the predicate offense to be found guilty of using or
carrying a firearm in relation to the predicate offense. Section 924(c) requires only
that the drug trafficking crime be one that “may be prosecuted.” Frye, therefore,
was properly convicted of violating section 924(c)(a) despite that he was not
convicted of the predicate offense on Count Five or charged with a predicate
offense on Count Six.
The other circuits that have addressed this issue have reached the same
conclusion we reach today. United States v. Carter, 300 F.3d 415, 425 (4th Cir.
2002); United States v. Lake, 150 F.3d 269, 274-75 (3d Cir. 1998); United States
v. Nelson, 27 F.3d 199, 200 (6th Cir. 1994); United States v. Myers, 993 F.2d 171,
172 (8th Cir. 1993); United States v. Hill, 971 F.2d 1461, 1467 (10th Cir. 1992);
United States v. Munoz-Fabela, 896 F.2d 908, 910-11 (5th Cir. 1990); United
States v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989). In Munoz-Fabela, the Fifth
Circuit held that “only the fact of the offense, and not a conviction, . . . is needed to
establish the required predicate,” and concluded that the charge of possession of
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cocaine with intent to distribute, which was contained in the first indictment but of
which Munoz was not convicted, was a sufficient “drug trafficking offense” within
the meaning of section 924(c). 896 F.2d at 910-11. Similarly, in Hunter, the Ninth
Circuit held that “a defendant charged with violating section 924(c)(1) must be
proven to have committed the underlying crime, but nothing in the statute or the
legislative history suggests he must be separately charged with and convicted of
the underlying offense.” 887 F.2d at 1003. We agree with their reading of the
plain language of section 924.
Third, Frye argues that there was an insufficient factual basis in the record to
support the convictions on Counts Five and Six. Rule 11(b)(3) requires that,
before accepting a guilty plea, a district court “must determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The purpose of this
requirement is to protect a defendant who mistakenly believes that his conduct
constitutes the criminal offense to which he is pleading.” United States v. Lopez,
907 F.2d 1096, 1100 (11th Cir. 1990) (citing McCarthy v. United States, 394 U.S.
459, 467, 89 S. Ct. 1166, 1171 (1969)). “The standard for evaluating challenges to
the factual basis for a guilty plea is whether the trial court was presented with
evidence from which it could reasonably find that the defendant was guilty.” Id.
The facts presented by the parties to enable the trial court to perform its role, under
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Rule 11(b)(3), were contained in nine pages of admissions by Frye, which the
parties entitled the “factual resume,” so we must evaluate Frye’s argument against
his admissions in that factual resume.
To convict a defendant under section 924(c)(1), the government must
demonstrate that the defendant used or carried a firearm, during and in relation to a
drug trafficking crime. Smith v. United States, 508 U.S. 223, 227-28, 113 S. Ct.
2050, 2053 (1993). A defendant carries a firearm if it is carried directly on his
person or carried in his vehicle. Muscarello v. United States, 524 U.S. 125, 131,
118 S. Ct. 1911, 1916 (1998). To prove the “in relation to” requirement, the
government must demonstrate that the firearm had “some purpose or effect with
respect to the drug trafficking crime; its presence or involvement cannot be the
result of accident or coincidence.” Smith, 508 U.S. at 238, 113 S. Ct. at 2058-59.
“The gun at least must facilitate, or have the potential of facilitating, the drug
trafficking offense.” Id. at 238, 113 S. Ct. at 2059 (citations and internal
punctuation omitted).
The factual resume provides sufficient facts for the district court reasonably
to have determined that the defendant was guilty. The resume states that, during
the attempt to manufacture methamphetamine at issue in Count Five, Frye carried a
Colt revolver in his left jacket pocket while transporting chemicals and equipment.
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The resume also states that Frye carried a Ruger 9 mm semi-automatic pistol
during the attempted theft of anhydrous ammonia for making methamphetamine at
issue in Count Six because the Ruger was found in plain view in the vehicle with
Frye. A reasonable factfinder could have concluded that in each case the gun
facilitated or had the potential to facilitate the offense. The district court did not
abuse its discretion when it accepted the plea.
Finally, Frye argues that the district court erroneously enhanced his sentence
using mandatory sentencing guidelines, but the government correctly responds that
this argument should be dismissed because it is within the scope of the sentence
appeal waiver. In the plea agreement, Frye waived his right to appeal his sentence
on any ground other than that (1) the sentence was imposed in excess of the
statutory maximum; (2) the sentence constitutes an upward departure from the
guideline range; or (3) he was deprived of effective assistance of counsel. Frye’s
appeal does not fall within any of the exceptions to his appeal waiver. “An appeal
waiver includes the waiver of the right to appeal difficult or debatable legal issues
or even blatant error . . . Specifically, ‘the right to appeal a sentence based on
Apprendi/ Booker grounds can be waived in a plea agreement. Broad waiver
language covers those grounds of appeal.’” United States v. Grinard-Henry, _ F.3d
_, 2005 WL 327265, *2 (11th Cir. Feb. 11, 2005) (citing United States v. Rubbo, _
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F.3d _, 2005 WL 120507, *5 (11th Cir. Jan. 21, 2005) (internal citation omitted)).
Frye’s only response to the argument of the government that he waived his
right to appeal is that the plea agreement was not knowing and voluntary. As
discussed earlier, we reject Frye’s argument that his plea agreement was not
knowing and voluntary. Frye’s appeal of his sentence, therefore, is barred by the
knowing and voluntary appeal waiver contained in his plea agreement. See Rubbo,
396 F.3d 1330.
IV. CONCLUSION
Because Frye knowingly and voluntarily pleaded guilty, the district court did
not abuse its discretion when it accepted the guilty plea. We dismiss Frye’s appeal
of his sentence, because Frye waived his right to appeal that issue.
AFFIRMED in part and DISMISSED in part.
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