                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2004

USA v. Lott
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2081




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-2081


                          UNITED STATES OF AMERICA

                                          v.

                            BRADLEY LANORD LOTT,
                                        Appellant


                     Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (D.C. Criminal No. 01-cr-00352-2)
                     District Judge: Honorable Sylvia H. Rambo


                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 26, 2004

     Before: SCIRICA, Chef Judge, RENDELL and ALARCÓN*, Circuit Judges.

                               (Filed June 21, 2004 )


                             OPINION OF THE COURT


RENDELL, Circuit Judge.

      On July 16, 2002, Bradley Lanord Lott pleaded guilty to charges of conspiracy to




  *Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
 Ninth Circuit, sitting by designation.
distribute an undisclosed quantity of crack cocaine in violation of 21 U.S.C. § 846. After

the acquittal of his coconspirator, Po Dickerson, Lott moved to withdraw his guilty plea,

disclaiming responsibility for those drugs not sold directly by him. This motion was

denied and Lott was sentenced to 151 months in prison. Lott moved to appeal the District

Court’s judgment pro se, and Lott’s counsel concurrently filed a motion to withdraw and

a brief with this Court pursuant to Anders v California, 386 U.S. 738 (1967), claiming

that a conscientious examination of the record revealed no non-frivolous issues.

Although given notice and the opportunity to respond, Lott has chosen not to file a pro se

brief detailing any legal issues he wished to raise on appeal. For the reasons explicated

below, we will affirm the District Court’s judgment and grant counsel’s request to

withdraw.

       In his Anders brief, Lott’s counsel identifies and subsequently addresses three

issues potentially appealable based on a review of the record.

(1) Withdrawal of Lott’s guilty plea.

       The first issue raised by counsel in his Anders brief is whether the District Court

abused its discretion in denying Lott’s motion to withdraw his guilty plea. We review a

district court’s denial of defendant’s motion to withdraw his guilty plea for abuse of

discretion. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003).

       A motion to withdraw a guilty plea in a criminal proceeding is regulated by Rule

11(d) of the Federal Rules of Criminal Procedure, which states in relevant part that a



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defendant may withdraw his guilty plea upon showing a “fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d). A determination of “fair and just” is

predicated on three factors: (1) whether the defendant asserts his innocence; (2) the

strength of the defendant’s reasons for withdrawal; and (3) whether the government

would be prejudiced by the withdrawal. Jones, 336 F.3d at 252 (citing United States v

Brown, 250 F.3d 811, 815 (3d Cir. 2001)).

       The District Court concluded that Lott had not asserted his innocence. We agree.

In both his recorded testimony at Dickerson’s trial and in statements given to the District

Court, Lott conceded his participation in drug transactions with the government

informant, as well as his joint ventureship with Dickerson. Lott does not dispute the facts

of his underlying conduct. Rather, after claiming informed knowledge of the charges

against him to the District Court, he now disagrees with the legal characterization of his

actions. However, as discussed below, Lott’s admitted conduct makes him accountable

under federal conspiracy drug laws and his articulated desire to be held responsible for

the lesser offenses of distribution is not an assertion of his innocence with respect to the

current charges.

       Also, Lott has not shown strong reason to withdraw his guilty plea, as required by

the second prong of the Third Circuit’s test for plea withdrawal. He argued three reasons

for withdrawal before the District Court: (1) his co-defendant was found not guilty; (2) he

should not be responsible for the drugs his co-defendant distributed; and (3) he did not



                                              3
understand his exposure by pleading to a conspiracy. (App. at 114).

       First, the guilt vel non of his co-conspirator is irrelevant to Lott’s conviction. The

rule of consistency, stating that the conviction of a sole defendant must be vacated where

all but one coconspirator is acquitted, only applies where an acquittal of one, and a

conviction of another, are decided in the same trial. Government of the Virgin Islands v.

Hoheb, 777 F.2d 138, 140 (3d Cir. 1985). Second, Lott’s assertion that he should not be

held responsible for the drugs sold by his partner, Dickerson, runs afoul of the substantive

criminal law to which he pled guilty. Any individual who conspires to commit an offense

proscribed by the federal drug laws is subject to the same penalties as those undertaking

the actual offense. See 21 U.S.C. § 846. Lott told the District Judge that he understood

the meaning of conspiracy and the charges against him. There is no merit to the claim

that he should not be held accountable for the drugs sold by Dickerson to the informant.

       Finally, Lott asserts that he did not understand his exposure by pleading to a

conspiracy. This is refuted by his own testimony upon entering the guilty plea. At the

hearing on his guilty plea, Judge Rambo clearly explained to Lott that “[a] conspiracy is

an agreement between or among two or more people to do an unlawful act. It doesn’t

need to be in writing. It doesn’t need to be spoken. But by your actions you combined

your efforts to do an unlawful act.” (App. at 43). Lott testified that he understood the

meaning of conspiracy and proceeded to plead guilty to the charges of conspiracy. Thus,

his reasons for desiring to withdraw his guilty plea are not strong.



                                              4
       Since Lott has not satisfied the first two prongs of showing fair and just reason to

set aside his plea, we need not explore the third prong, prejudice to the government.

United States v. Martinez, 785 F.2d 111, 115-6 (3d Cir. 2003).

(2) Liability for Coconspirator’s Sales.

       Lott’s counsel also raises the issue that the quantity of drugs for which Lott is

accountable should not include the sales made by Dickerson. The District Court

determined that Lott was responsible for the sale of 159.6 grams of crack cocaine,

representing both his own sales and those of his coconspirator to the confidential

informant and placing him within the sentencing range of 151 to 188 months required for

level 34. Isolating those sales made only by the defendant would reduce the sentencing

range to 121 to 151 months. We review such sentencing determinations for clear error.

United States v. Yeung, 241 F.3d 321, 322 (3d Cir. 2001).

       The District Court did not err in determining that Lott was responsible for all sales

made to the confidential informant. He pleaded guilty to conspiracy charges, which make

a defendant accountable for “all reasonably foreseeable acts and omissions of others in

furtherance of [] jointly undertaken criminal activity”. U.S.S.G. § 1B1.3 (a)(1)(B) (2001).

In sentencing Lott to 151 months, the District Court determined that all of the sales to the

government informant constituted a single drug conspiracy, and that those sales made by

Dickerson were reasonably foreseeable to Lott.

       Ample evidence in the record supports the District Court’s finding that the drugs



                                              5
sold by Dickerson were relevant to Lott’s conviction, by establishing both a single

business venture and the objective foreseeability of sales by both Dickerson and Lott.

The record reflects that, inter alia, Lott purchased and distributed crack cocaine for

Dickerson, Dickerson stored a trove of drugs at a site available to both men, Lott sold

Dickerson’s crack cocaine to a government informant with the permission of Dickerson,

and Lott was aware that an independent relationship existed between Dickerson and the

informant. (App. at 67-69, 73-74). Thus, the District Court did not commit clear error in

finding that Lott was involved in a joint criminal venture and that the sales made by his

partner were reasonably foreseeable to him, making him legally accountable for his

partner’s drug sales.

(3) Acceptance of Responsibility.

       The third issue raised by counsel in his Anders brief is whether the District Court

erred in denying a reduction of offense level for the defendant’s acceptance of

responsibility. The Sentencing Guidelines for Relevant Conduct explicates that the

defendant is responsible, “in the case of a jointly undertaken criminal activity (a criminal

plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others),

[for] all reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity”. U.S.S.G. § 1B1.3(a)(1)(B) (2001). Further, “a defendant

who falsely denies, or frivolously contests [conduct for which he is accountable under

section 1B1.3] . . . has acted in a manner inconsistent with acceptance of responsibility.”



                                              6
U.S.S.G. § 3E1.1(1)(a), cmt. n.1(a) (2001). A matter is frivolously contested when none

of the legal points are arguable on the merits. Neitzke v. Williams, 490 U.S. 319, 325

(1989). Under § 1B1.3, Lott is accountable for the reasonably foreseeable behavior of

Dickerson. He frivolously contested his responsibility for the relevant conduct

attributable to him by denying all responsibility for the actions of his coconspirator

Dickerson, both in his motion to withdraw the guilty plea and his sentencing objections.

Thus, he cannot be said to have accepted responsibility. Moreover, according to the

sentencing guidelines “the sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility. For this reason, the determination of the

sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, cmt. n.5

(2001). We see no error in the District Court’s denial of the offense level

recommendation.

       When evaluating an Anders brief, we inquire (1) whether counsel adequately

represented his client; and (2) whether an independent review of the record reveals any

non-frivolous issues that could support an appeal. See United States v Youla, 241 F.3d

296, 300 (3d Cir. 2001). We find that counsel conducted a rigorous review of the record

and has correctly concluded that there were no non-frivolous issues for appeal. Anders,

386 U.S. at 744. We are satisfied that all requirements of the Anders procedure have

been met.

       Accordingly we will GRANT counsel’s request to withdraw and will AFFIRM the



                                              7
Judgment of the District Court.




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