The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4226
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BROOKS THOMAS LACKEY BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00237-5)
Submitted: January 23, 2008 Decided: February 8, 2008
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patrick B. Ochsenreiter, OCHSENREITER LAW FIRM, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Brooks Thomas
Lackey Brown pled guilty to conspiracy to possess with intent to
distribute methamphetamine, 21 U.S.C. § 846 (2000), and use of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1) (2000). He now appeals his convictions, contending
that there was not full compliance with Fed. R. Crim. P. 11 at his
arraignment. We affirm.
Brown was not the only defendant arraigned during a
proceeding before a magistrate judge on August 16, 2006. At the
opening of the proceeding, there was a discussion about another
defendant’s motion for a continuance. After the magistrate judge
asked to see counsel at the bench, the transcript of the proceeding
reveals that the tape recorder was turned off.
The recorder was turned on again after approximately
eighteen minutes. By then, the Assistant United States Attorney
was summarizing the other defendant’s plea agreement. The
magistrate judge then inquired whether Brown understood that, by
pleading guilty, he waived his right to pursue an appeal or to
mount a postconviction challenge to his conviction and sentence.
Brown replied that he did. Brown also acknowledged that his
signature appeared at the bottom of the plea agreement. He denied
that his plea was the result of force, threats, or intimidation,
and he agreed that, other than the plea agreement, his plea was not
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the result of a promise of leniency or a light sentence. Brown
informed the magistrate judge that he was satisfied with his
attorney’s services and said that he had had sufficient time to
consult with his lawyer. The magistrate judge asked whether Brown
had any statements to make or questions to ask the court, and Brown
replied that he did not. The magistrate judge then found that
Brown’s guilty plea was knowing and voluntary and accordingly
accepted the plea.
At sentencing, Brown informed the district judge that: he
had entered a guilty plea before the magistrate judge; he was
pleading guilty to conspiracy to possess methamphetamine and
possession of a firearm in relation to a drug trafficking crime; he
understood the nature of these offenses and the possible penalties
he faced; he was satisfied with his attorney’s services; his plea
was freely and voluntarily entered; and he had committed both
offenses. After ascertaining that there was an independent basis
in fact to support the plea, the district court adjudged Brown
guilty. Brown was sentenced to 240 months in prison.
At arraignment, the court must “inform the defendant of,
and determine that the defendant understands” those matters listed
at Fed. R. Crim. P. 11(b)(1)(A)-(N). Brown contends that the
transcript of his arraignment shows that the district court probed
his understanding of only one such matter--the provision in the
plea agreement concerning his waiver of appellate rights. See Fed.
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R. Crim. P. 11(b)(1)(N). Because there allegedly was not full
compliance with the Rule, Brown contends that his guilty plea
cannot stand.
We have held that when a portion of a transcript is
missing or otherwise unavailable, an appellant must show prejudice
flowing from the fact that the portion is missing in order to
obtain relief. United States v. Huggins, 191 F.3d 532, 537 (4th
Cir. 1999); United States v. Gillis, 773 F.2d 549, 554 (4th Cir.
1985). We conclude that Brown cannot make the requisite showing.
First, he signed a thirty-four question “Entry and Acceptance of
Guilty Plea,” which reflects that on the day he was arraigned, he
appeared, was sworn, and answered “the following questions on the
record.” The thirty-four questions fully encompass the various
matters identified in Rule 11(b)(1). Brown’s response to each
question is indicated on the form, which both he and his attorney
signed. The responses disclose that Brown was fully advised in
accordance with the Rule.
Based on Brown’s answers on the form, we conclude that
the magistrate judge conducted a complete and proper inquiry under
Rule 11. We note that the portion of the proceeding that was
recorded and transcribed is consistent with Brown’s answers on the
form. Additionally, Brown’s representations at sentencing
concerning his arraignment demonstrate that his plea was knowingly
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and voluntarily entered and tend to show that Brown cannot meet his
burden of establishing prejudice.
Because Brown has not demonstrated that his case was
prejudiced by the fact that a portion of his arraignment was not
recorded and therefore could not be transcribed, we affirm his
convictions. We deny the motion for appointment of counsel and
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
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