UNITED STATES of America, Plaintiff-Appellee, v. Ricky PAGE, Defendant-Appellant.
No. 15-6451
United States Court of Appeals, Sixth Circuit.
September 26, 2016
337
Paul M. Laufman, Laufman & Napolitano, Cincinnati, OH, for Defendant-Appellant
Ricky Page, Pro Se
BEFORE: GILMAN, GIBBONS, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge.
Defendant Ricky Page pleaded guilty to charges of distributing a controlled substance and being a felon in possession of a firearm. Page had multiple prior convictions for felonies that involved either controlled substances or violence. The government and Page agreed that Page would face a statutory minimum of fifteen years of imprisonment. In the plea agreement, Page waived his right to appeal most aspects of his conviction and sentence. The district court accepted the plea with its sentence of 180 months, the statutory minimum under the Armed Career Criminal Act (ACCA). On appeal, Page argues for the first time that the ACCA should not apply, and that his trial counsel was ineffective for failing to challenge its applicability at the earlier stages of his case. For the following reasons, we AFFIRM the judgment of the district court.
I. BACKGROUND
On April 19, 2012, Page sold three grams of heroin to a confidential informant. The next month, a search warrant was executed at Page‘s residence and two firearms were located. The superseding indictment filed against Page listed three previous felony convictions—for facilitation to first-degree robbery, trafficking in a controlled substance, and first-degree robbery—in support of charges for being a felon in possession of a firearm. In a written agreement, Page pleaded guilty of distributing a controlled substance in violation of
In the plea agreement under Rules
Page timely appealed his conviction and sentence.
II. ANALYSIS
A. Waiver Of Right To Appeal
Page argues that there were defects in the factual basis of his guilty plea and that prior convictions must be charged as predicate crimes and found as such by the jury to qualify him as an armed career criminal. Neither argument was raised in the district court. The government argues that the terms of the plea agreement prevent appeal of these issues.
The waiver clause in Page‘s plea agreement reads:
Defendant is aware of his right to appeal his conviction and that
18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Unless based on claims of ineffective assistance of counsel or prosecutorial misconduct, the Defendant knowingly and voluntarily waives the right (a) to directly appeal his conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. § 3742 , and (b) to contest or collaterally attack his conviction and the resulting sentence under28 U.S.C. § 2255 or otherwise.
(R. 44, ¶ 11 PageID 110) The district judge described the waiver clause and its effect to Page, who affirmed that he understood the matter. Page also confirmed that he had adequate time to talk with his trial counsel about the guilty plea, and was satisfied with the attorney‘s advice.
The government urges us to forego review of substantive matters in this case based on the waiver clause. Page does not directly address his waiver of the right to appeal his conviction and sentence, other than to conclude that “the record makes clear that Mr. Page‘s acquiescence to the plea agreement was premised on his counsel‘s deficient performance.” Presumably, Page asks us to disregard the waiver clause because it is found in a plea agreement that was “itself ... infected by the ineffective assistance of trial counsel.”
We generally review the district court‘s rulings for plain error regarding arguments that were not brought at the trial court level. United States v. Caruthers, 458 F.3d 459, 473 (6th Cir. 2006). Page has fashioned part of his appeal around his trial counsel‘s alleged ineffectiveness at the plea and sentencing phases. We do not normally review ineffective assistance of counsel claims on direct appeal because the record is usually insufficient for appellate review at this stage. United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). When the record is sufficient for review of ineffective assistance of counsel claims, we review it de novo as a mixed question of fact and law. Id. at 761. A plaintiff asserting ineffective assistance on a guilty plea must show that “counsel‘s performance was deficient and that the deficient performance prejudiced his defense such that there is a ‘reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.‘” Id. at 762 (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
A waiver of the right to appeal does not leave a defendant “entirely at the whim of the district court.” Caruthers, 458 F.3d at 471 (quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)). And such a waiver does not preclude a defendant from challenging a sentence as exceeding the statutory maximum. Id. at 472. In Caruthers, an appellant challenged his status as an armed career criminal. The crime of being a felon in possession of a firearm is normally punishable by a maximum of ten years, but is punishable by a minimum of fifteen years if the ACCA applies. Id. (quoting
B. Armed Career Criminal Designation
Most of Page‘s arguments, whether termed merits attacks or claims of ineffective assistance of counsel, derive from his designation as an armed career criminal. To avoid his enhanced sentence under the ACCA, Page urges us to overrule a published decision of this court and abrogate a decision of the Supreme Court. Those cases remain good law and we affirm Page‘s designation as an armed career criminal.
1. Facilitation to Commit First-Degree Robbery as a Predicate
The ACCA establishes a statutory minimum of fifteen years of imprisonment for defendants convicted of felon-in-possession laws while having three or more prior convictions for serious drug offenses or violent felonies, both of which have multi-pronged definitions. See
This court previously decided in United States v. Elliott that facilitation to commit robbery, first degree, in Kentucky qualifies as an ACCA predicate under the use of force prong, 757 F.3d 492, 496 (6th Cir. 2014). The court concluded that “no matter the facts, a defendant cannot be convicted of facilitation of robbery, first degree, in Kentucky unless his conduct actually aided the commission of the robbery, which means that the completed offense must be proved. The completed offense of robbery, first degree, involved a theft committed through the use or threatened immediate use of physical force upon another person ....” Id.
Page argues that Elliott was wrongly decided in light of Descamps. He claims that criminal facilitation in Kentucky can be committed without the use of force, making the statute too broad to qualify under the use of force prong. But in Elliott, this court addressed a similar argument and found that the elements at issue are those for facilitation to commit robbery, first degree, not “facilitation in the abstract.” Id. at 495. The Elliott court, with Descamps in mind, found that facilitation to commit robbery, first degree, in Kentucky was an indivisible statute that
We also note that Page‘s prior conviction for second-degree burglary would likely provide the third predicate to qualify him as an armed career criminal. See United States v. Jenkins, 528 F.App‘x 483, 485 (6th Cir. 2013) (holding second-degree burglary under Kentucky law qualified as a violent felony under the enumerated crimes prong of the ACCA).
2. Predicate Crimes
Page also argues that his sentencing under the ACCA was improper because the predicate crimes should have been presented to a grand jury and been part of the factual basis of the plea. In Almendarez-Torres v. United States, 523 U.S. 224, 246, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that Congress can authorize a judge to find the fact of a prior conviction for sentencing matters. Page argues that we should read a subsequent Supreme Court case, Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), as abrogating Almendarez-Torres. However, the Alleyne decision acknowledges Almendarez-Torres and explicitly sets that case outside its holding. Id. at 111 n.1 (“In Almendarez-Torres ... we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision‘s vitality, we do not revisit it for purposes of our decision today.“) Indeed, this court has already rejected the argument that Alleyne requires the nature or character of prior convictions to be found by a jury. Elliott, 757 F.3d at 496-97. The district court again committed no error when it found, based on the factual basis established in the plea agreement and proceedings, that Page had at least three predicate violent felonies or serious drug offenses.
III. CONCLUSION
Page appeals his conviction and sentence, although he waived his right to appeal most aspects of his conviction and sentence. The appeal is without merit because Page was properly classified as an armed career criminal based on his prior convictions for violent felonies and serious drug offenses. As we have previously held, facilitation to commit robbery, first degree, in Kentucky is a violent felony under the use of force prong of the Armed Career Criminal Act. The district court properly determined that Page had at least three prior convictions that qualify as ACCA predicates. To the extent Page claims ineffective assistance of counsel based on his status as an armed career criminal, those claims are without merit. The district court did not err, and the judgment is therefore AFFIRM ED.