                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0642n.06

                                           No. 08-3126
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                             Oct 07, 2010
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT     FOR     THE
v.                                                       )        SOUTHERN DISTRICT OF
                                                         )        OHIO
JEROME MITCHELL,                                         )
                                                         )                 OPINION
       Defendant-Appellant.                              )



BEFORE: NORRIS, ROGERS, and WHITE, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Jerome Mitchell appeals his sentence and convictions

for possession of ammunition by a felon and for possession with the intent to distribute both powder

and crack cocaine. On appeal, Mitchell’s counsel has filed an Anders brief and a motion to withdraw

as counsel. See Anders v. California, 386 U.S. 738 (1967). His brief identifies three issues for

appeal and also advances an additional argument raised by Mitchell. For the reasons discussed

below, counsel’s motion to withdraw is granted, and the judgment is affirmed.

                                                 I.

       A federal grand jury indicted Jerome Mitchell on two counts of possession of ammunition

by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 1 and 2); one count of possession with

intent to distribute in excess of 50 grams of cocaine base, 21 U.S.C. §§ 841(a) and (b)(1)(A)(iii)

(Count 3); and one count of possession with intent to distribute in excess of 500 grams of powder
No. 08-3126
United States v. Mitchell

cocaine, 21 U.S.C. §§ 841(a) and (b)(1)(B)(ii) (Count 4). Pursuant to 21 U.S.C. § 851, the

government filed an information stating that Mitchell had a 2004 felony drug conviction in the

Hamilton County Court of Common Pleas, Hamilton County, Ohio, which subjected him to a

mandatory twenty-year term of imprisonment if convicted of the crack-cocaine count (count 3).

       Before trial, Mitchell filed a motion to suppress evidence seized pursuant to a search warrant.

After the district court denied the motion, Mitchell entered a nolo contendere plea to all offenses

charged in the indictment, without the benefit of a written plea agreement.

       During the change of plea hearing, the government read the substance of the indictment, and

Mitchell entered a separate nolo contendere plea to each count. During the hearing, the district judge

advised Mitchell on several occasions of the minimum and maximum penalties that he would face

by pleading nolo contendere. At each point, Mitchell confirmed that he understood these penalties.

       However, the sentencing information provided by the district judge was inconsistent and at

times erroneous. Counts 1 and 2 (possession of ammunition by a felon) both carry statutory

maximums of ten years each and have no mandatory minimums. See 18 U.S.C. §§ 922(g) and

924(a)(2). Count 3 (possession with intent to distribute cocaine base) has a statutory minimum of

twenty years if the defendant has committed a prior felony drug offense, and a maximum sentence

of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). Count 4 (possession with intent to

distribute powder cocaine) carries a ten-year statutory minimum and a maximum term of life

imprisonment. See 21 U.S.C. § 841(b)(1)(B)(ii). At one point in the proceedings, the district judge

erroneously advised Mitchell that he would be subject to a mandatory minimum sentence of twenty



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United States v. Mitchell

years and a maximum term of life imprisonment for not only Count 3, but also Count 4, when in fact,

as just noted, only Count 3 carries a statutory minimum penalty of twenty years.

       During the plea colloquy the district court advised Mitchell of the rights he was waiving by

pleading nolo contendere, and ascertained that Mitchell understood both the substance of those rights

and that he was giving them up by entering a plea of no contest. The government read into the

record the elements of the offenses and a statement of facts establishing the required elements.

Included in the statement of facts was the following: “[Mitchell] acknowledged that he’s been

convicted of crimes punishable by imprisonment for terms exceeding one year . . . in Hamilton

County Common Pleas Court, Hamilton County, Ohio.” Hearing, R. 56 at 95. The district court

confirmed that Mitchell agreed that the statement of facts was correct and that he intended to plead

nolo contendere to the offenses charged in the indictment.

       The district court also ascertained that Mitchell entered his plea voluntarily, knowingly, and

intelligently. In making this determination, however, the district court again failed to advise Mitchell

correctly that he was subject to a mandatory minimum of twenty years only for Count 3:

       [T]he Court is satisfied that . . . [Mitchell] recognizes that the mandatory minimum-
       the mandatory minimum penalty provided by law of these charges is, on Counts 1
       and 2, is 20 years mandatory, mandatory minimum imprisonment sentence on each
       count, and the maximum possible penalty provided by law of life imprisonment on
       Counts 1 and 2, as well as the penalties on the other . . . counts..”

Hearing, R. 56 at 97. Mitchell’s counsel neither objected nor attempted to clarify the various

misstatements concerning the minimum and maximum penalties that the district court made during

the hearing.



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        At sentencing, the district court explained the recommended guidelines range, as shaped by

the statutory maximums for Counts 1 and 2 and the statutory minimum for Count 3. The district

court then discussed Mitchell’s “chaotic upbringing” and stated that this case “is outside the

heartland of cases where a defendant might have been raised by a single parent in poverty,”

indicating that it would have been inclined to grant a downward variance “were it not for the

mandatory minimum on Count 3 of 20 years.” The district court sentenced Mitchell to concurrent

terms of 120 months of imprisonment (the statutory maximum) on Counts 1 and 2; 240 months of

imprisonment (the statutory minimum) on Count 3; and 151 months of imprisonment (the lowest end

of the Guidelines range) on Count 4. Mitchell, through counsel, stated that he had no objections to

the pronounced sentence.

        In his brief, defense counsel identifies three plausible arguments for appeal: (1) whether

Mitchell’s plea was involuntary in light of the district court’s incorrect statements at the plea hearing

concerning the mandatory sentences; (2) whether the district court erred at sentencing by failing to

comply with the requirements of 21 U.S.C. § 851; and (3) whether the district court erred by

imposing a within-Guidelines sentence on Count 4 and statutory maximum sentences on Counts 1

and 2 after indicating that a downward variance would be warranted if it were not for the mandatory

twenty-year minimum sentence imposed for Count 3. At Mitchell’s request, his counsel also

contends that the district court erred in denying Mitchell’s motion to suppress. Mitchell was advised

of his right to file a response to his attorney’s Anders brief, but he has not done so.




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                                                 II.

       Court-appointed counsel may move to withdraw from representation if, after conducting a

conscientious review of the case, counsel concludes that the appeal is “wholly frivolous.” Anders,

386 U.S. at 744. A request to withdraw “must be accompanied by a brief referring to anything that

might arguably support the appeal.” Id. In addition, the defendant must be provided with a copy of

counsel’s brief and allowed time to raise any additional points he chooses in support of his appeal.

Id.

       Our role is then to undertake “a full examination of the proceedings, [and] to decide whether

the case is wholly frivolous.” Id. If we determine that “the appeal is indeed so frivolous that it may

be denied without an adversary presentation,” Penson v. Ohio, 488 U.S. 75, 82 (1988), we should

permit counsel to withdraw and “dismiss the appeal insofar as federal requirements are concerned,

or proceed to a decision on the merits, if state law so requires.” Anders, 386 U.S. at 744.

A. Validity of the Plea

       Counsel first suggests that Mitchell could argue that his plea was not intelligently made

because the confusion demonstrated by the district court concerning potential sentences casts doubt

on whether the plea was entered knowingly. To be valid, a plea of guilty must be entered knowingly,

voluntarily, and intelligently. Brady v. United States, 397 U.S. 742, 748-49 (1970). Federal Rule

of Criminal Procedure 11 requires a district court to advise a defendant of, among other things, “any

maximum possible penalty, including imprisonment, fine, and term of supervised release [and] any

mandatory minimum penalty” before accepting a plea of guilty or nolo contendere. Fed. R. Crim.

P. 11(b)(1)(H)-(I). Because Mitchell was provided with conflicting and erroneous information about

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United States v. Mitchell

the minimum and maximum sentences for the four offenses to which he pleaded no contest, counsel

points out that Mitchell could plausibly argue that the plea proceedings warrant reversal.

       It is true that where, as here, a district court overstates the maximum potential sentence to

which a defendant may be subject, the misinformation may deprive the defendant of an

understanding of the actual consequences he faces and the true nature of the options available to

him, thereby making his plea unintelligent. See United States v. Stubbs, 279 F.3d 402, 411-12 (6th

Cir. 2002), abrogation on other grounds recognized by United States v. Helton, 349 F.3d 295, 299

(6th Cir. 2003); Pitts v. United States, 763 F.2d 197, 200 (6th Cir. 1985); United States v. Guerra.

94 F.3d 989, 995 (5th Cir. 1996). However, in this case, Mitchell has neither indicated that he was

confused by the district court’s misstatements nor has he attempted to withdraw his plea. See

United States v. Dominguez -Beutez, 542 U.S. 74, 84 (2004) (“[A] defendant who seeks reversal of

his conviction after a guilty plea, on the ground that the district court committed plain error under

Rule 11, must show a reasonable probability that, but for the error, he would not have entered the

plea.”). Because he has not requested the only relief for which he would be eligible, we hold that

the district court’s misstatements during the change-of-plea hearing do not create a non-frivolous

ground for appeal.

B. District Court’s Failure to Conduct the Required Inquiry under 21 U.S.C. § 851(b)

       As the second plausible ground for appeal, Mitchell’s counsel suggests that the district court

failed to comply with 21 U.S.C. § 851(b) at sentencing. When the government intends to seek a

penalty enhancement for a charged offense by reason of one or more prior convictions, it must file

an information with the district court and serve the defendant or defense counsel with a copy. 21

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United States v. Mitchell

U.S.C. § 851(a). If the government files such an information, section 851(b) requires the district

court to secure the defendant’s affirmation or denial of the previous conviction:

       If the United States attorney files an information under this section, the court shall
       after conviction but before pronouncement of sentence inquire of the person with
       respect to whom the information was filed whether he affirms or denies that he has
       been previously convicted as alleged in the information, and shall inform him that
       any challenge to a prior conviction which is not made before sentence is imposed
       may not thereafter be raised to attack the sentence.

21 U.S.C. § 851(b). The district court failed to conduct a § 851(b) colloquy at sentencing. Because

of counsel’s failure to object we review for harmless error. United States v. Denkins, 367 F.3d 537,

539 (6th Cir. 2004) (citing United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998)). We find none.

Because Mitchell had affirmed at his prior plea hearing that the details about his conviction as set

forth in the government’s statement of facts were correct, the district court’s failure to revisit the

prior felony at sentencing was harmless.

C. Length of Sentences

       As a third plausible ground for appeal, Mitchell’s counsel directs us to the district court’s

observation at sentencing that this case is one that would warrant a downward variance but for the

twenty-year mandatory minimum imposed for Count 3. According to Mitchell’s counsel, this

statement could be interpreted to mean that the district court was not aware that it had the authority

to grant a downward reduction in the sentences imposed for Counts 1, 2, and 4, and that, therefore,

the sentence imposed was unreasonable.

       “When objections are properly preserved, we review a sentence for reasonableness.

However, when the district court asks at sentencing whether there are any objections to the sentence


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United States v. Mitchell

and the appellant raises none, we review the sentence only for plain error.” United States v. Bailey,

488 F.3d 363, 367 (6th Cir. 2007) (citations omitted). Because Mitchell, through counsel, answered

the district court in the negative when asked whether he had any objections to the sentence imposed,

plain error analysis applies to his procedural reasonableness challenge.

        To obtain relief under plain error analysis, a defendant must prove “(1) error, (2) that is plain,

and (3) that the affect[s] [the defendant’s] substantial rights.” Id. at 368 (quoting Johnson v. United

States, 520 U.S. 461, 466-67 (1997) (punctuation altered)). “Generally, an error does not affect

substantial rights unless it is prejudicial – in other words, the error ‘must have affected the outcome

of the district court proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

Once the defendant has made the required showing, “an appellate court may then exercise its

discretion to notice a forfeited error, but only if . . . the error seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” Id. (quoting Johnson, 520 U.S. at 467).

        Even were we to conclude that the district court committed plain error in failing to recognize

that it was not precluded from considering a sentencing variance, any such error did not seriously

affect the fairness of the judicial proceedings. We reach that conclusion because the district court

sentenced Mitchell to concurrent terms on all four counts. The longest of those sentences--240

months of imprisonment–reflected the correct statutory minimum sentence for Count 3. Because

remand for resentencing would not result in a shorter sentence, relief is not warranted.

D. Denial of Motion to Suppress

        At his client’s request, counsel has raised the denial of Mitchell’s motion to suppress as a

ground for appeal. The issue is not properly before us. Federal Rule of Criminal Procedure 11(a)(2)

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United States v. Mitchell

permits a defendant to enter a conditional plea of guilty or nolo contendere while reserving the right

“ to have an appellate court review an adverse determination of specified pre-trial motion.” Fed. R.

Crim. P. 11(a)(2). However, a defendant who enters an unconditional plea generally forfeits any

non-jurisdictional claims that arose before his plea of guilty or nolo contendere. United States v.

Bahhur, 200 F.3d 917, 923 (6th Cir. 2000). Mitchell’s plea was entered unconditionally. He

therefore did not reserve the right to challenge the denial of the motion to suppress on appeal.

United States v. Vasquez-Martinez, _F.3d_, 2010 WL 3186147 (6th Cir. 2010).

E. Clerical Error

       Lastly, we note an error in the written judgment, which states that the offense under Count

4 was possession of “crack cocaine” with intent to distribute. As already discussed, Count 4 charged

Mitchell with possession of powder cocaine. It should list it as possession with intent to distribute

powder cocaine. The error in the written judgment reflects a clerical mistake correctable by the

district court at any time pursuant to Fed. Crim. P. 36.

                                                 III.

       The motion to withdraw by Mitchell’s counsel is granted, the district court’s judgment is

affirmed, and the action is remanded for correction of the clerical error.




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