UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5003
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LONNIE EDWARD MALONE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:07-cr-00037-JPJ-1)
Submitted: April 10, 2012 Decided: April 20, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wade T. Anderson, FRITH ANDERSON & PEAKE, P.C., Roanoke,
Virginia, for Appellant. Zachary T. Lee, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Edward Malone pled guilty pursuant to a written
plea agreement to possession of a short-barreled shotgun in
furtherance of a drug trafficking crime and conspiracy to
distribute fifty grams or more of methamphetamine. He was
sentenced to a total of 330 months in prison (210 months on the
conspiracy count and a consecutive 120-month sentence on the
firearm count). On appeal, counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no viable grounds for appeal but questioning whether
Malone’s guilty plea and appellate waiver were knowing and
voluntary. Neither the Government nor Malone has filed a brief.
We affirm.
First, we note that the Government has not relied on
the appellate waiver on appeal, and we do not raise such waivers
sua sponte. Thus, we will not enforce the waiver to bar any
meritorious claims. As such, we decline to address Malone’s
claim regarding the voluntariness of his waiver.
Turning to Malone’s claim that his plea was unknowing
and involuntary, a trial court, through colloquy with the
defendant, must inform the defendant of, and determine that he
understands, the nature of the charges to which the plea is
offered, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
2
pleading guilty. Fed. R. Crim. P. 11(b). The court also must
determine whether there is a factual basis for the plea and
ensure that the plea did not result from force, threats, or
non-plea agreement promises. Id.; United States v. DeFusco, 949
F.2d 114, 119-20 (4th Cir. 1991). The purpose of the Rule 11
colloquy is to ensure that the plea of guilty is entered into
knowingly and voluntarily. See United States v. Vonn, 535 U.S.
55, 58 (2002). Because Malone did not move in the district
court to withdraw his guilty plea, the claim is reviewed for
plain error. 1 See United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002). In the guilty plea context, to satisfy the
plain error standard, the defendant must show inter alia that he
would not have pled guilty but for that error. Id. at 532.
Malone contends that his plea was unknowing and
involuntary because he reasonably believed that he was pleading
guilty in exchange for a fifteen-year sentence. Malone avers
that he lacked the capacity to understand that he was very
unlikely to receive the mandatory minimum fifteen-year sentence
(five years for the conspiracy, followed by a ten year
1
Malone admits that, in general, the appropriate standard
would be plain error; however, he contends that the “unique
circumstances of this case require this Court to apply an
abuse-of-discretion standard.” Malone provides no citations
supporting the conclusion that an abuse of discretion standard
may be applied in certain cases of forfeited error.
Accordingly, we reject his contention.
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consecutive sentence on the firearm count) or to comprehend what
length of sentence he realistically faced. In support, Malone
cites to confusion regarding the charge to which he was pleading
guilty, as well as his attorney’s admitted failure to provide
him with an estimate of a Guidelines sentence. 2
In order to show that he was incompetent to plead
guilty, Malone must show that “his mental facilities were so
impaired . . . when he pleaded that he was incapable of full
understanding and appreciation of the charges against him, of
comprehending his constitutional rights and of realizing the
consequence of the plea.” United States v. Truglio, 493 F.2d
574, 578 (4th Cir. 1974). While Malone only had a seventh grade
education, limited ability to read and write, and a memory
allegedly impaired by medication, both trial counsel and the
district court were able to personally observe Malone and found
him competent and able to understand the proceeding. At the
Rule 11 hearing, Malone’s responses were appropriate and
reflected his ability to understand the questions. Malone’s
2
Malone’s trial counsel averred that he and Malone had not
discussed a probable Guidelines sentence and instead focused on
the applicable mandatory minimum.
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bald assertions to the contrary are insufficient to show error,
much less plain error. 3
Next, while there was some confusion at the Rule 11
hearing surrounding the count to which Malone was pleading
guilty, it was attenuated from the discussion of mandatory and
Guidelines sentences, which is what Malone claims he did not
understand. Moreover, based upon our review of the Rule 11
transcript, the court was careful to clear up the confusion and
ensure that Malone understood exactly the count and charges to
which he was pleading guilty.
Finally, we address trial counsel’s admissions that he
did not provide Malone with even a rough estimate of the
Guidelines range he faced. However, neither Rule 11 nor the Due
Process Clause requires that a defendant be informed of a likely
sentence. Instead, defendants must be made aware of the minimum
and maximum sentences they face, as well as the applicability of
the Sentencing Guidelines. Fed. R. Crim. P. 11(b)(1)(H), (I),
(M). Malone was informed of all of these facts, and he stated
that he understood. Most specifically, Malone agreed in his
plea agreement that he could receive any sentence up to the
3
Moreover, as discussed above, to show plain error, Malone
would need to prove that, absent the error, he would have
proceeded to trial. Malone has not provided any evidence that
he would have foregone a guilty plea had he been aware that a
fifteen-year sentence was not a probability.
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statutory maximum. At his Rule 11 hearing, Malone testified
that he read, signed, and initialed each page of his plea
agreement and that his attorney had explained its provisions to
him. See United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir.
1992) (holding that Rule 11 testimony may not be repudiated if
information by the court corrects earlier misinformation
provided by attorney and defendant admits to understanding the
court’s advice); Fields v. Att’y Gen. of Md., 956 F.2d 1290,
1299 (4th Cir. 1992) (“Absent clear and convincing evidence to
the contrary, a defendant is bound by the representations he
makes under oath during a plea colloquy.”). 4
We conclude that Malone has failed to overcome his
Rule 11 testimony that he understood that there were no
guarantees as to the sentence he could receive. As such, we
conclude that his plea was knowing and voluntary. Pursuant to
Anders, we have reviewed the entire record in this case for
reversible error and have found none. Accordingly, we affirm
the district court’s judgment.
4
Moreover, counsel’s inaccurate sentencing predictions do
not generally constitute ineffective assistance. See United
States v. Foster, 68 F.3d 86, 87-88 (4th Cir. 1995) (rejecting
ineffective assistance claim by defendant who entered a guilty
plea only upon erroneous assurances of counsel that he would not
be considered a “career offender”).
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This court requires that counsel inform Malone in
writing of his right to petition the Supreme Court of the United
States for further review. If Malone requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Malone. 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
7