United States v. Kevin Wick
687 F. App'x 238
| 4th Cir. | 2017Background
- Kevin J. Wick pled guilty under a Rule 11(c)(1)(C) plea agreement to five counts of transporting a minor with intent to engage in criminal sexual activity (18 U.S.C. § 2423(a)).
- The district court accepted the plea and imposed the agreed sentence of 312 months’ imprisonment.
- Defense counsel filed an Anders brief asserting no meritorious appeal but questioning whether a sufficient factual basis supported convictions on Counts 2 and 3.
- Wick filed a pro se supplemental brief claiming ineffective assistance of counsel and asserting innocence.
- The Fourth Circuit reviewed the Rule 11 plea colloquy for plain error because Wick did not move to withdraw his plea below.
- The court found the plea knowing and voluntary, concluded the FBI agent’s testimony supplied a sufficient factual basis for Counts 2 and 3, and rejected Wick’s claims on direct appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of factual basis for Counts 2 & 3 | Wick (via Anders counsel) argued the record lacked sufficient factual basis because victims did not affirmatively state sexual assault | Government argued FBI agent’s testimony provided adequate factual basis; sexual contact is not an element of the offense charged | Court held no plain error; agent testimony sufficed and sexual contact is immaterial to the offense charged |
| Validity of plea under Rule 11 | Wick argued (pro se) he was innocent and counsel ineffective | Government maintained plea was knowing, voluntary, and met Rule 11 requirements | Court held plea was knowing and voluntary; plea conclusively established the offense elements and facts |
| Standard of review (plain error) | Wick did not preserve Rule 11 errors below, so plain-error review applies | Government urged plain-error review and that errors did not affect substantial rights | Court applied plain-error standard and found no error affecting substantial rights |
| Ineffective assistance of counsel on direct appeal | Wick alleged counsel was ineffective | Government argued record does not conclusively show ineffective assistance; such claims belong in § 2255 unless record conclusively demonstrates ineffectiveness | Court held record does not conclusively show ineffectiveness; claim is for § 2255, not direct appeal |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure for counsel to follow when asserting no meritorious appellate issues)
- DeFusco v. United States, 949 F.2d 114 (4th Cir. 1991) (Rule 11 plea colloquy requirements)
- United States v. Sanya, 774 F.3d 812 (4th Cir. 2014) (plain-error review for unpreserved Rule 11 challenges)
- United States v. Willis, 992 F.2d 489 (4th Cir. 1993) (a knowing, voluntary guilty plea conclusively establishes offense elements and material facts)
- United States v. Galloway, 749 F.3d 238 (4th Cir. 2014) (ineffective-assistance claims on direct appeal require record to conclusively show ineffectiveness)
- United States v. Baptiste, 596 F.3d 214 (4th Cir. 2010) (ineffective-assistance claims generally pursued under § 2255 for fuller record development)