     Case: 12-31193            Document: 00512963592         Page: 1     Date Filed: 03/10/2015




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit

                                                                                          FILED
                                           No. 12-31193                             March 10, 2015
                                                                                     Lyle W. Cayce
                                                                                          Clerk
UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,
v.

RANDY L. RANDALL,

                                                       Defendant-Appellant.




                        Appeal from the United States District Court
                           for the Western District of Louisiana
                                  USDC No. 5:11-CR-317




Before DAVIS and ELROD, Circuit Judges. *
PER CURIAM: **
         We sua sponte withdraw the prior panel opinion, United States v.
Randall, 770 F.3d 359 (5th Cir. 2014), and substitute the following:




         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
         *

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

         **   This opinion is being entered by a quorum of this court pursuant to 28 U.S.C. Section
46(d).
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                                  No. 12-31193


      Randy L. Randall pleaded guilty pursuant to a plea agreement to one
count of conspiracy to possess with intent to distribute five kilograms or more
of cocaine (Count 1), in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one
count of possession of a firearm in furtherance of a drug trafficking crime
(Count 24). As part of a signed “Factual Basis,” he admitted that the facts
therein were sufficient to support the conspiracy charge, that the “overall
scope” of the conspiracy involved five kilograms or more of cocaine, and that
148.8 grams of cocaine and 35.2 grams of cocaine base had been seized from
the apartment where he was arrested.
      At Randall’s rearraignment, the district judge confirmed that he
understood the contents of the plea agreement and the consequences of
pleading guilty, including a “maximum sentence, on Count 1, not less than 10
years nor more than life.” 1 After reviewing the Factual Basis, the district court
asked, “Did you . . . , with other persons, knowingly and intentionally conspire
and agree together to possess with intent to distribute 5 kilograms or more of
a mixture and substance containing a detect[a]ble amount of cocaine?” Randall
replied, “Yes.” Based on Randall’s Factual Basis and his unequivocal admission
that he conspired to possess with intent to distribute five kilograms or more of
cocaine, the district judge accepted his guilty plea and entered a judgment of
guilty.
      Randall’s first appointed attorney withdrew shortly after his conviction.
Nearly four months later and less than a month before sentencing, Randall



1 See 21 U.S.C. § 841(b)(1)(A)(ii) (providing 10-year mandatory minimum sentence for
offenses involving five kilograms or more of cocaine).
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                                    No. 12-31193


filed a pro se motion to withdraw his guilty plea claiming that he was “was
frightened into accepting a plea bargain on the basis that he otherwise faced a
term of life in prison, which he has since found to be untrue.” He filed a second
pro se motion approximately one week before his sentencing date, claiming for
the first time that one of the co-defendants had admitted that “he used Randall
to stash cocaine in Randall’s apartment without Randall know[ing] it” and that
his first attorney had been ineffective.
      The PSR found that, although the overall drug amount involved in the
conspiracy was five kilograms or more of cocaine, Randall’s own “responsibility
and knowledge in this case was limited to 148.8 net grams of powder cocaine,
and 35.2 net grams of crack cocaine.” 2 Based on that drug amount, the PSR
calculated a Guidelines range of 70 to 87 months of imprisonment. However,
the PSR concluded that the statutory mandatory minimum sentence of 120
months under 21 U.S.C. § 841(b)(1)(A)(ii) was required.
      The court held a hearing on Randall’s motion on November 8, 2012, at
which Randall was represented by a new attorney. The district judge concluded
that Randall had not met any of the Carr factors which might support
withdrawing his guilty plea. 3 Though the judge noted that Randall did assert


2 The PSR converted these drug amounts to a single marijuana equivalency of 155.46
kilograms.
3 These factors are:



            (1) whether or not the defendant has asserted his innocence; (2)
            whether or not the government would suffer prejudice if the
            withdrawal motion were granted; (3) whether or not the
            defendant has delayed in filing his withdrawal motion; (4)
            whether or not the withdrawal would substantially
            inconvenience the court; (5) whether or not close assistance of
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                                     No. 12-31193


his actual innocence, he had waited until just before sentencing to do so, and
the judge “went over that pretty thoroughly on the Rule 11 colloquy.” The judge
gave Randall the opportunity to speak, and Randall raised some issues
concerning his first attorney. The district judge explained that, while Randall
might eventually seek relief under 28 U.S.C. § 2255 for ineffective assistance
of counsel, he could not withdraw his guilty plea. The district judge therefore
denied Randall’s motions and sentenced him based on the facts he admitted
when entering his guilty plea and the “findings of the probation office.”
      The district court noted the applicable Guidelines range of 70 to 87
months but concluded it was required to impose the statutory mandatory
minimum sentence of 120 months for Count 1. Thus, Randall was sentenced to
120 months of imprisonment on Count 1 and a consecutive mandatory sentence
of 60 months of imprisonment on Count 24. He filed a timely notice of appeal.
He now argues for the first time on appeal that the district court erred by
imposing the statutory mandatory minimum sentence for Count 1. For the
reasons set out below, we affirm the sentence.
                                    DISCUSSION
       In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be



             counsel was available; (6) whether or not the original plea was
             knowing and voluntary; and (7) whether or not the withdrawal
             would waste judicial resources....

United States v. Urias-Marrufo, 744 F.3d 361, 364 (5th Cir. 2014) (quoting United States v.
Carr, 740 F.2d 339, 343-44 (5th Cir. 1984) (footnotes omitted)).
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submitted to a jury, and proved beyond a reasonable doubt,” 4 or, under Blakely
v. Washington, 542 U.S. 296, 303 (2004), admitted by the defendant. In Alleyne
v. United States, 133 S. Ct. 2151, 2158 (2013), the Supreme Court extended
this holding to facts that increase the mandatory minimum sentence, as in this
case. The issue in this appeal is whether Randall should be sentenced based
on the amount of drugs attributable to the conspiracy as a whole or only on the
amount attributable to him individually.
         Randall’s unequivocal admission at his plea colloquy that he did
“knowingly and intentionally conspire and agree together [with other persons]
to possess with intent to distribute 5 kilograms or more of a mixture and
substance containing a detect[a]ble amount of cocaine” is fatal to his argument.
         Randall’s contention that his involvement in the conspiracy was for less
than five kilograms was presented for the first time in a motion to withdraw
his guilty plea filed approximately one week before sentencing, long after the
district court accepted his guilty plea. His late assertion that one of his co-
conspirators “used Randall to stash cocaine in Randall’s apartment without
Randall know[ing] it” was not only inconsistent with his earlier unequivocal
admission of guilt, but also inconsistent with the PSR’s finding that Randall at
least had responsibility for and knowledge of the drugs found in his apartment.
Randall does not challenge the district court’s ruling that he failed to satisfy
the Carr factors to prevail on his motion to withdraw his plea, so we must
accept that decision.




4   530 U.S. at 490.
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                                 No. 12-31193


      We therefore conclude that Randall’s unequivocal admission of guilt is
sufficient to support his sentence. As the district court noted, Randall may well
end up filing for relief under 28 U.S.C. § 2255, but the outcome here is required
on the record before us.
                                CONCLUSION
      For the reasons set out above, we AFFIRM the sentence.




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