noting that plain error review applies to an allegation of Rule 11 error not preserved by objection at the plea hearing
How later courts described this case
- noting that plain error review applies to an allegation of Rule 11 error not preserved by objection at the plea hearing
Written by the judges who cited it.
The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2729
UNITED STATES OF AMERICA
v.
LAMONT RIDLEY
also known as
MONTY
also known as
MONT
also known as
MACK
Lamont Ridley,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 08-cr-00190-001)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
July 2, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges
(Opinion Filed: July 6, 2010)
OPINION
BARRY, Circuit Judge.
Lamont Ridley appeals from the District Court’s judgment of sentence, and his
counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967). Ridley has filed a pro se informal brief. We will affirm.
I.
Because the parties are familiar with the facts, we will set forth only those
necessary to our analysis. Ridley was a large-scale cocaine distributor in Atlantic City,
New Jersey. On December 19, 2008, he pled guilty to a superseding information
charging him with conspiracy to distribute and possess with intent to distribute 500 grams
or more of cocaine, contrary to 21 U.S.C. § 841(a)(1), (b)(1)(B) and in violation of 21
U.S.C. § 846.1 The parties had entered into a plea agreement and stipulated that, between
July 2006 and March 2007, Ridley obtained and sold, or possessed with the intent to sell,
at least 500 grams of cocaine. Because of Ridley’s classification as a career offender, the
applicable Guidelines range was 188 to 235 months imprisonment.2 At sentencing on
1
A grand jury had previously returned an indictment charging Ridley with conspiracy
to distribute and possess with intent to distribute five kilograms or more of cocaine, and a
superseding indictment charging him with conspiracy as well as seven counts of
distribution of cocaine, one count of possession with intent to distribute cocaine, one
count of maintaining a place for the purpose of manufacturing a controlled substance, and
thirteen counts of using a communication facility (telephone) to further a drug conspiracy.
2
Ridley qualified as a career offender, U.S.S.G. § 4B1.1, because of three previous
state court convictions for drug offenses. The base offense level for this quantity of
cocaine is 26, U.S.S.G. § 2D1.1(c)(7), which was increased to 34 by virtue of the career
offender provision. Ridley received a three-level downward adjustment for acceptance of
responsibility and timely pleading guilty, § 3E1.1(a), (b), for a total offense level of 31.
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June 3, 2009, Ridley requested a downward departure pursuant to U.S.S.G. § 4A1.3(b) for
over-representation of criminal history, which the District Court denied. He also argued
for a downward variance based on his positive contributions to the community. The
Court ultimately imposed a sentence of 180 months imprisonment, an eight-month
downward variance from the bottom of the Guidelines range, as well as five years of
supervised release and a $100 special assessment. Ridley appealed, and counsel now
seeks to withdraw, stating that there are no non-frivolous issues for us to review on
appeal.
II.3
“Under Anders, appellant’s counsel must satisfy the court that he or she has
thoroughly scoured the record in search of appealable issues and then explain why the
issues are frivolous. The Court’s inquiry when counsel submits an Anders brief is thus
twofold: (1) whether counsel adequately fulfilled Third Circuit Local Appellate Rule
109.2’s requirements [that counsel file a motion to withdraw and supporting Anders
brief]; and (2) whether an independent review of the record presents any nonfrivolous
issues.” United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (internal quotation
marks, citations, and alterations omitted); see also United States v. Youla, 241 F.3d 296,
299-300 (3d Cir. 2001). Here, counsel has filed a thorough brief that satisfies the
As a career offender, his criminal history category increased from V to VI.
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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requirements of Anders. And, after our own review of the record, we agree that there are
no non-frivolous issues on appeal.
First, the District Court was satisfied that Ridley entered his guilty plea knowingly
and voluntarily, and Ridley does not contend otherwise. During the plea colloquy, the
prosecutor recited the pertinent terms of the plea agreement, including the factual
stipulations between the parties, and Ridley was advised of the applicable penalties. The
Court ensured that Ridley understood the proceedings, confirmed that he wished to waive
indictment by the grand jury, described federal sentencing procedure, noted the elements
of the offense, established the factual basis for the plea, and described the rights that he
was giving up by pleading guilty. In sum, the District Court’s colloquy adequately
established that Ridley’s guilty plea was validly entered.4
Second, we concur with counsel that the District Court did not err in conducting
the sentencing hearing and imposing sentence. We review sentences for abuse of
discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). With
respect to procedural reasonableness, we ensure “that the district court committed no
4
Although the District Court did not explicitly advise Ridley of the right to plead not
guilty, Fed. R. Crim. P. 11(b)(1)(B), or the right to be represented by counsel at every
stage of the proceeding, Fed. R. Crim. P. 11(b)(1)(D), those errors were not plain. See
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004) (noting that plain error
review applies to an allegation of Rule 11 error not preserved by objection at the plea
hearing). To establish plain error in this context, Ridley “must show a reasonable
probability that, but for the error, he would not have entered the plea.” Id. at 83. We are
confident that he would be unable to meet this burden, as there is no indication that any
misapprehension regarding these rights influenced Ridley’s decision to plead guilty.
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significant procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence–including an explanation for any deviation from the
Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). With
respect to substantive reasonableness, we will affirm “unless no reasonable sentencing
court would have imposed the same sentence on that particular defendant for the reasons
the district court provided.” Id. at 568.
The sentencing proceeding met the requirements we have outlined. See United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006); see also Fed. R. Crim. P. 32. The
Guidelines calculation as set forth in the pre-sentence investigation report was
undisputed, and the District Court offered an opportunity to object to the report at
sentencing. The Court denied Ridley’s motion for a downward departure pursuant to §
4A1.3(b), a discretionary decision that we do not have jurisdiction to review. United
States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009). It then permitted counsel, Ridley, and
his friends and family to address it before imposing sentence. Finally, the Court
considered the sentencing factors set forth at 18 U.S.C. § 3553(a). It adequately
explained its chosen sentence, noting the seriousness of the offense and Ridley’s criminal
history, but also acknowledged his favorable personal characteristics and the support he
received from his family and friends. With respect to substantive reasonableness, it is
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clear that the below-Guidelines sentence imposed is “within the broad range of possible
sentences that can be considered reasonable in light of the § 3553(a) factors.” United
States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008); see also App. at 156 (District Court
noting the “tremendous break” Ridley received from the opportunity to plead guilty to the
superseding information and the dismissal of the superseding indictment).
Finally, Ridley has filed a pro se informal brief raising one additional issue. He
contends that his counsel also represented Ralph Davis, who was separately charged with
drug conspiracy, and that this presents a conflict of interest because Davis “made a
statement against [him].” We have held, however, that “an actual conflict of interest
claim, like other types of ineffective assistance of counsel claims, is generally not
cognizable in the first instance on direct appeal.” United States v. Morena, 547 F.3d 191,
198 (3d Cir. 2008) (noting also that “[s]uch claims are better reserved for 28 U.S.C. §
2255 actions” which allow for factual development of the claim). Accordingly, we
decline to consider this claim in the first instance.
III.
For the foregoing reasons, we will affirm the judgment of sentence and grant
counsel’s motion to withdraw. We note that the issues presented in this appeal lack legal
merit and do not require the filing of a petition for certiorari with the United States
Supreme Court. 3d Cir. L.A.R. 109.2(b).
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