United States v. Javon Baker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4629

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAVON TYSHAUN BAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00030-BO-1)

Submitted: April 28, 2014 Decided: May 20, 2014

Before KING, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. H. Paramore, III, W.H. PARAMORE, III, P.C., Jacksonville,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Javon Tyshaun Baker pleaded guilty pursuant to a plea

agreement to one count of possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1), and possession

of firearms in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A)(i). Baker challenges only

his firearms conviction on appeal. He asserts that this

conviction should be vacated because, at the Rule 11 hearing,

the district court: (1) failed to adequately explain the

appellate waiver in his plea agreement; and (2) did not require

a factual basis to show that Baker possessed firearms “in

furtherance” of a drug trafficking crime. We affirm.

A defendant may waive his appellate rights pursuant to a

plea agreement, and we have consistently upheld the validity of

appellate waivers. See, e.g., United States v. Manigan, 592

F.3d 621, 627 (4th Cir. 2010). A valid appellate waiver will

preclude the appeal of an issue that falls within the scope of

the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005). Whether a defendant validly waived his right to appeal

is a question of law that we review de novo. Id.

2
Our independent review of the record supports the

conclusion that Baker voluntarily and knowingly waived his right

to appeal his firearms conviction. The district court properly

determined that Baker was competent and that he entered his plea

voluntarily. Baker stated that he fully discussed the case with

his attorney and was satisfied with the attorney’s

representation. The district court specifically discussed the

appellate waiver contained in Baker’s plea agreement, and Baker

confirmed the accuracy of the court’s description. Thus, we

conclude that the district court substantially complied with

Rule 11 requirements, and the appellate waiver is valid and

enforceable.

II.

Baker contends nonetheless that the appellate waiver does

not foreclose his claim that the government did not proffer a

sufficient factual basis to support his plea of guilty to

possessing firearms in furtherance of a drug trafficking crime.

We acknowledge some uncertainty in this circuit about whether a

defendant may waive the Rule 11 requirement that a district

court determine whether there is a sufficient factual basis for

the defendant’s plea. Compare United States v. Bell, 359 F.

App’x 442, 444 (4th Cir. 2010) (unpublished) (suggesting a

defendant can challenge whether there was a factual basis for

his plea on appeal notwithstanding a valid appellate waiver

3
because the challenge attacks the validity of the plea itself),

with United States v. Carter, 267 F. App’x 203, 203 (4th Cir.

2008) (unpublished) (concluding that a valid and enforceable

appellate waiver foreclosed defendant’s appeal that the

government’s proffer at the Rule 11 hearing was inadequate).

Rather than rely on waiver here, we choose to resolve

Baker’s argument that his plea to the firearms conviction was

not knowing and voluntary on the merits. Based on a careful

review of the record, we conclude the district court complied

with Rule 11, as there was a sufficient factual basis for

Baker’s plea.

“Federal Rule of Criminal Procedure 11(b)(3) requires the

district court to determine whether a factual basis exists

before entering judgment on a guilty plea.” United States v.

Ketchum, 550 F.3d 363, 366 (4th Cir. 2008). It is well settled,

however, that in determining the existence of a factual basis

for a guilty plea, “the district court possesses wide

discretion, and it need only be subjectively satisfied that

there is a sufficient factual basis for a conclusion that the

defendant committed all of the elements of the offense.” Id.

(internal quotation marks omitted).

To sustain a conviction under the second prong of § 924(c),

the government must present evidence “indicating that the

possession of a firearm furthered, advanced, or helped forward a

4
drug trafficking crime.” United States v. Lomax, 293 F.3d 701,

705 (4th Cir. 2002). Whether a firearm served such a purpose is

a question of fact. Id. When making this factual

determination, the factfinder may consider: “the type of drug

activity that is being conducted, accessibility of the firearm,

the type of weapon, whether the weapon is stolen, the status of

the possession (legitimate or illegal), whether the gun is

loaded, proximity to drugs or drug profits, and the time and

circumstances under which the gun is found.” Id. (internal

quotation marks omitted). Moreover, possession may be either

actual or constructive. See United States v. Maldonado-Garcia,

446 F.3d 227, 231 (1st Cir. 2006); United States v. Bailey, 329

F. App’x 439, 441 (4th Cir. 2009) (unpublished).

In this case, the government’s proffer showed that

investigators searching Baker’s home found significant amounts

of marijuana; a marijuana grinder; a digital scale; two loaded

handguns, one with an obliterated serial number; seventy

additional rounds of ammunition; $683 in cash; and video camera

surveillance equipment. The loaded .32 caliber revolver was

located under the living room couch cushion; additional .32

caliber ammunition was found in the dresser in the master

bedroom; the loaded Glock .45 caliber pistol--which had no

serial number because it had been removed--was found under the

pillow in the master bedroom; .45 caliber ammunition was found

5
in the dresser in the master bedroom; and $675 in cash and a

letter addressed to Baker were both located in the bedroom.

In addition, the marijuana was not confined to one area of

the house. Indeed, it was found “throughout the house” in the

living room, kitchen, and master bedroom, as were the firearms

and ammunition. J.A. 23. Baker admitted to ownership of the

firearms and to selling the marijuana and, as the government

argued, the video camera allowed Baker to monitor anyone who was

approaching his residence, including law enforcement.

These facts were more than sufficient to show that Baker

possessed the firearms to “further[], advance[], or help[]

forward” his marijuana trafficking activities. United States v.

Robinson, 627 F.3d 941, 955 (4th Cir. 2010). * Thus, it was not

error for the district court to accept Baker’s plea.

We affirm the district court’s judgment. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before this court and

argument would not aid in the decisional process.

AFFIRMED

*
Although Baker cites to this court’s unpublished opinion
in United States v. Benson, 63 F. App’x 88 (4th Cir. 2003), we
find the case inapposite. The evidence the government proffered
at the Rule 11 hearing in this case far exceeded the evidence at
issue in Benson.