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No. 09-4411
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-00711-HFF-7)
Submitted:
Decided:
PER CURIAM:
Marvin
McDowell
appeals
from
the
180-month
sentence
to
one
count
of
conspiracy
to
distribute
five
(Rule
record
11)
in
accepting
conclusively
McDowells
shows
guilty
McDowell
plea;
received
(2)
the
ineffective
to
accepting
defendants
guilty
plea,
Rule
him;
any
mandatory
possible
sentence,
including
supervised
release;
applicability
(U.S.S.G.
or
of
the
the
minimum
imprisonment,
mandatory
United
Guidelines)
sentence;
special
States
and
2
fine,
their
the
and
maximum
term
assessment;
Sentencing
advisory
of
the
Guidelines
nature;
his
plead
not
guilty;
his
right
to
jury
trial
with
the
Fed. R.
defendant that he may not withdraw his guilty plea once the
court accepts it and imposes a sentence.
11(e).
there
11(b)(3).
factual
basis
Finally,
defendants
result
Fed. R. Crim. P.
of
plea
was
force,
the
for
the
district
voluntary
threats,
plea.
or
and
Fed.
court
did
must
not
promises.
come
Fed.
R.
Crim.
ensure
about
R.
P.
the
as
Crim.
a
P.
11(b)(2).
Because McDowell did not move to withdraw his guilty
plea in the district court or raise any objections to the Rule
11 colloquy, we review the colloquy for plain error.
United
States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); United
States
v.
demonstrate
General,
plain
278
F.3d
error,
389,
McDowell
393
(4th
must
Cir.
show
2002).
that
To
error
occurred, that the error was plain, and that the error affected
3
in the plea colloquy and our review of the record reveals that
the district court substantially complied with the requirements
of Rule 11.
record
that
his
counsel
did
not
provide
effective
assistance.
Cir. 1998).
satisfy
requirements:
fell
two
below
(2) that
an
there
objective
is
(1)
that
standard
reasonable
counsels
of
representation
reasonableness
probability
that,
but
and
for
indicated
at
the
plea
hearing
that
Moreover,
he
had
ample
establish
that
McDowell
received
ineffective
because
the
Government
has
not
sought
consider
designation.
McDowells
challenge
to
his
career
offender
330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).
To qualify as a career offender: (1) the defendant
must have been at least eighteen years old at the time of the
offense of conviction; (2) the offense of conviction must have
been a felony crime of violence or controlled substance offense;
(3)
and
the
convictions
offenses.
defendant
for
crimes
must
of
have
violence
U.S.S.G. 4B1.1(a).
Investigation
Report,
at
McDowell
least
or
two
prior
controlled
felony
substance
two
predicate
convictions:
one for distribution of cocaine and one for failure to stop for
5
blue
light
(2006).
in
violation
of
South
Carolina
Code
56-5-750
reasoning
regarding
the
meaning
of
violent
felony
is
light
statute
is
strict
liability
crime,
under
no
2010).
In
light
conviction
for
predicate
offense
enhancement.
of
failure
for
Rivers,
we
to
for
stop
purposes
conclude
a
of
that
McDowells
blue
light
is
the
career
not
offender
McDowells
objection.
improperly
designated
Additionally,
a
career
because
offender,
we
McDowell
find
that
was
the
properly
calculate
the
applicable
Guidelines
range.
See
We