UNITED STATES оf America, Plaintiff-Appellee, v. Steven Dale SHANKLIN, Defendant-Appellant.
No. 05-51337.
United States Court of Appeals, Fifth Circuit.
Decided Aug. 11, 2006.
193 Fed. Appx. 384
Summary Calendar.
Steven Dale Shanklin, Austin, TX, pro se.
PER CURIAM:*
Steven Dale Shanklin appeals his guilty-plea conviction and sentence for tax evasion. He has filed a motion for release pending appeal and a motion for expedited consideration of his motion for release pending appeal.
Shanklin argues that the district court abused its discretion by denying his motion to withdraw guilty plea. For the first time in his reply brief, he maintains that the district court erred by allowing him less thаn two minutes to present argument in support of his motion to withdraw guilty plea.**
Shanklin did not unequivocally assert his innocence when arguing his motion to withdraw guilty plea and, at rearraignment, Shanklin unequivocally admitted, under oath, that he was guilty and that his plea was knowing and voluntary. See United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (citation omitted) (strong presumption of validity to declarations under oath in open court). Additionally, Shanklin waited until the day of the second sentencing hearing, more than four months after the entry of his guilty plea, to move to withdraw the guilty plea. See United States v. Grant, 117 F.3d 788, 790 (5th Cir. 1997) (withdrawal of guilty plea at sentencing inconveniences court and wastes judicial resources). Given the totality of the circumstances, Shanklin has not shown that the district court abused its discretion by denying his motion to withdraw guilty plea. See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
For the first time on appeal, Shanklin argues that the distriсt court plainly erred by denying his motion to withdraw guilty plea because he did not waive his right to a jury trial in writing as required by
Fоr the first time on appeal, Shanklin argues that the district court plainly erred by denying his motion to withdraw guilty plea because his plea agreement contained a binding sentencing recommendation pursuant to
The stipulation between Shanklin and the Government regarding the total tax loss under
At rearraignment, the district court did not advise Shanklin that he had no right to withdraw his guilty plea if it did nоt follow the recommendation in the plea agreement as required by
For the first time on appeal, Shanklin argues that the district сourt‘s denial of his motion to withdraw guilty plea violated his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. We review this contention for plain error. See Hull, 160 F.3d at 271. The Fifth Amendment did not bar Shanklin‘s guilty plea, and Shanklin did not have an absolute right to withdraw his guilty plea. See Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (Fifth Amendment does not bar guilty pleas); Powell, 354 F.3d at 370 (no absolute right to withdraw guilty plea). Shanklin‘s Sixth Amendment right to a jury trial was waived by his guilty plea. See Robertson, 698 F.2d at 707.
Shanklin argues that the district court erred by denying his request to represеnt himself at sentencing. A criminal defendant has a Sixth Amendment right to represent himself as well as a statutory right. Faretta v. California, 422 U.S. 806, 819-34, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975);
Shanklin argues that he received ineffective assistance of counsel in the district court. Although Shanklin argued, in support of his motion to withdraw guilty plea and his request to represent himself, that his counsel had been ineffective, neither Shanklin nor his counsel testified under oath regarding Shanklin‘s ineffective-аssistance allegations. Furthermore, the district court did not make any factual findings on the allegations. Because the record is not sufficiently developed for this court to consider Shanklin‘s ineffective assistance of counsel claim, we deny the claim without prejudice to Shanklin‘s right to raise it in a motion to vacate, set aside, or correct sentence pursuant to
Shanklin raises numerous procedural and substantive challenges to his sentencing and the sentence imposed. Because Shanklin did not raise his procedural challenges below, we review for plain error. See United States v. Jones, 444 F.3d 430, 443 (5th Cir.), cert. denied, 126 S.Ct. 2958 (2006). Although the district court and the Government discussed the terms of the plea agreement at the first sentencing hearing, nothing in the record indicates that the district court misrepresented the terms of the plеa agreement or held any incorrect views regarding those terms. While the district court speculated at the second sentencing hearing that Shanklin may have money hidden away, it specifically stated that this possibility did not factor into its sentencing decision. Shanklin does not indicate which disputed matters he asserts the district court did not rule upon at sentencing in violation of
Contrary to Shanklin‘s assertion,
Shanklin‘s uncontested guidelines sentence range was 15-21 months of imprisonmеnt and the district court made an upward deviation to the statutory maximum of 60 months of imprisonment pursuant to the discretion granted to it in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court based its upward deviation on the following fact-specific reasons: Shanklin‘s intelligence and his deliberate ignorance regarding the payment of taxes; that Shanklin signed false withholding forms under penalty of perjury; Shanklin‘s fail-
While the district court did consider Shanklin‘s income, this was in the contеxt of the amount of taxes Shanklin failed to pay and thus was consideration of Shanklin‘s offense, not impermissible consideration of Shanklin‘s socio-economic status, a prohibited factor under
This court has recently noted that the extent of a deviation is “of no independent consequence.” Id. at 709 n. 5 (intеrnal quotation marks omitted). Furthermore, given Shanklin‘s history and characteristics, the seriousness of his offense conduct, and the need for deterrence as found by the district court, the extent of the deviаtion was not unreasonable. See id. (collecting cases); United States v. Reinhart, 442 F.3d 857, 864 (5th Cir. 2006) (upward deviation from 151 months to 235 months is not presumptively unreasonable).
By rendering the Sentencing Guidelines advisory only, Booker eliminated the Sixth Amendment concerns that prohibited a sentencing judge from finding all facts relеvant to sentencing. United States v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert. denied, 126 S.Ct. 2884 (2006); United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Thus, contrary to Shanklin‘s assertion, while the district court based Shanklin‘s sentence on facts not proven to a jury or admitted by Shanklin, this was not erroneous. See Johnson, 445 F.3d at 797-98.
Shanklin‘s ex post facto argument is without merit. The application of the Sentencing Guidelines as merely advisory does not violate the Ex Post Facto Clause, even if the offense conduct occurred prior to Booker. United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005); United States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005).
Using Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), as a benchmark, Shanklin‘s sentence of 60 months of imprisonment for evading more than $400,000 in taxes was not “grossly disproportionate.” See United States v. Gonzales, 121 F.3d 928, 943 (5th Cir. 1997). Thus, the sentence did not violate the Eighth Amendment‘s prohibition against cruel and unusual punishment. See Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996).