               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0081n.06

                                       Case No. 14-5475                               FILED
                                                                                 Jan 27, 2015
                         UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE WESTERN
DARRELL VARNER,                                      )        DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )

                                          OPINION

BEFORE: BOGGS and McKEAGUE, Circuit Judges; PEARSON, District Judge.*

       McKEAGUE, Circuit Judge. Darrell Varner challenges his plea agreement, claiming

that it is invalid because he was not aware at the time of his plea of dashboard-camera footage

that was the basis for a six-level sentencing enhancement.       He also brings an ineffective-

assistance-of-counsel claim. We affirm.

       On the morning of March 13, 2013, Varner and his codefendant, Joseph Fuller,

unsuccessfully attempted to rob a T-Mobile store in Memphis.         Later that same day, they

successfully robbed a different T-Mobile store before leading authorities on a multi-state, high-



*
The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
Case No. 14-5475
U.S. v. Varner

speed car chase. At some point during the chase, defendants abruptly changed lanes and drove

towards an officer who was deploying a spike strip on the side of the road. The officer moved to

avoid being hit. Varner and Fuller were detained soon after.

       The two were charged with one count of aiding and abetting attempted robbery and one

count of aiding and abetting robbery, in violation of 18 U.S.C. §§ 2 and 1951; and two counts of

using and carrying a firearm during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c). Varner pleaded guilty to both robbery counts and to one of the two firearm

counts. The agreement set forth the minimum and maximum statutory penalties for each charge.

It also contained an appeal-waiver provision under which Varner agreed not to appeal a sentence

within the statutory range except for prosecutorial misconduct and ineffective assistance of

counsel.

       The district court held a change of plea hearing where the government read the terms of

the plea agreement and provided a factual basis for the plea. Varner acknowledged that the facts

were true as read and admitted his guilt. Varner also acknowledged that he was aware of the

rights he was giving up and that he understood the appeal waiver. The court then explained the

sentencing Guidelines and advised Varner that he could be sentenced above or below the

advisory Guidelines range.

       The Pre-Sentence Report (“PSR”) calculated an offense level of 34 and a Guidelines

range of 168 to 210 months, which included a six-level enhancement under U.S.S.G.

§ 3A1.2(c)(1) because the fleeing car almost hit a law enforcement officer. After receiving the

PSR, the government shared with Varner’s counsel the video documenting the relevant portion

of the car chase. The government had not been aware of this video until Fuller’s sentencing




                                              -2-
Case No. 14-5475
U.S. v. Varner

hearing, three months after his change of plea. Varner objected to that enhancement because, he

argued, he did not know at the time of his plea that this video existed.

       At the sentencing hearing, the district court overruled Varner’s objection and applied the

six-level enhancement, resulting in a Guidelines range of 121 to 151 months for the robbery

counts and a mandatory minimum of 60 months to be served consecutively for the firearms

count. Varner was sentenced to concurrent 121-month terms for the robbery charges and 60

months for the firearms charge, to run consecutively. Varner now argues that his counsel’s lack

of knowledge of this video constituted ineffective assistance. In addition, he claims that the plea

agreement was not entered into knowingly and intelligently because he could not understand the

full consequences of the guilty plea without knowledge of the video.

       For the ineffective-assistance claim, Varner argues that his counsel could not properly

advise him of the consequences of pleading guilty without knowledge of the video. In general,

we do not review ineffective-assistance-of-counsel claims on direct appeal because “there has

not been an opportunity to develop and include in the record evidence bearing on the merits of

the allegations.” United States v. Franco, 484 F.3d 347, 354–55 (6th Cir. 2007) (internal

quotation marks and citations omitted). A well-developed factual record is vital to whether

prejudice can be shown. Id.; see also United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997).

Defendants may instead bring these claims collaterally under 28 U.S.C. § 2255, which the appeal

waiver in Varner’s plea agreement contemplates. There is no reason to depart from the general

rule here.   Because the record before us has not been adequately developed to make a

determination, we abstain from ruling on this issue.

       Varner also argues that his plea was not knowing and intelligent, as it must be to be valid.

United States v Dixon, 479 F.3d 431, 434 (6th Cir. 2007) (citing Brady v. United States, 397 U.S.


                                                -3-
Case No. 14-5475
U.S. v. Varner

742, 748 (1970)). The district court must verify that the defendant understands the “‘applicable

constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the

factual basis for concluding that the defendant committed the crime charged.’” Id. at 434

(quoting United States v. Webb, 403 F.3d 373, 378–79 (6th Cir. 2005)); see also Fed. R. Crim. P.

11. We review de novo whether a guilty plea was knowing, voluntary, and intelligent. Dixon,

479 F.3d at 434. The factual bases relied upon by the court below are reviewed for clear error.

Id.

       Varner’s plea meets these requirements. A defendant knowingly and intelligently enters

a plea when he understands, among other things, the maximum sentence he may receive at

sentencing. See United States v. Stephens, 906 F.2d 251, 253–54 (6th Cir. 1990); United States

v. Meeks, 290 F. App’x 896, 905 (6th Cir. 2008). The plea agreement correctly listed the

statutory range of penalties and there is no indication that Varner was not aware of the nature of

the charge to which he pleaded or of the consequences of his plea. See Brady, 397 U.S. at 448;

Pickens v. Howes, 549 F.3d 377, 380 (6th Cir. 2008). Varner explicitly acknowledged that he

was aware of that sentencing range, and there were no “‘affirmative misstatements of the

maximum possible sentence.’” Dixon, 479 F.3d at 435 (quoting Pitts v. United States, 763 F.2d

197, 201 (6th Cir. 1985)). It does not matter, therefore, that he may not have been aware of

certain evidence that would support a sentencing enhancement.

       Because Varner knowingly and intelligently entered the plea, the plea agreement is valid

and he has waived his right to appeal this sentence, which is within the statutory range. We will

not consider his ineffective assistance claim on direct review. For these reasons, we affirm.




                                               -4-
