UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4359

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN FITZGERALD JACKSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. James C. Turk, Senior

District Judge. (CR-03-40; CR-04-15)

Submitted: August 18, 2006 Decided: September 15, 2006

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Helen E. Phillips, Stanardsville, Virginia, for Appellant. John L.

Brownlee, United States Attorney, Jean B. Hudson, Assistant United

States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

John Fitzgerald Jackson pleaded guilty in the Western

District of Virginia to one count of conspiracy to distribute and

possess with intent to distribute 500 grams or more of cocaine,

fifty grams of more of crack cocaine, and an unspecified quantity

of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).

Jackson was also indicted on one count of possession of a firearm

after having been convicted of a felony, in violation of 18 U.S.C.

§ 922(g) (2000), by the grand jury in the Western District of

Pennsylvania. This indictment was transferred to the Western

District of Virginia pursuant to Fed. R. Crim. P. 20. Jackson was

ultimately sentenced by the district court for the Western District

of Virginia to 262 months of imprisonment on the drug conspiracy

count, and a concurrent term of 180 months of imprisonment on the

felon-in-possession count. Jackson timely appealed, and counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). In the Anders brief, counsel states that there are no

meritorious issues for appeal but suggests that Jackson’s sentence

is unconstitutional. In his pro se supplemental brief, Jackson

raises five allegations of error in the determination of his

sentence.

Upon our review of the record, we directed the parties to

file supplemental briefs addressing whether Jackson in fact pleaded

guilty to the count in the indictment from the Western District of
- 3 -

Pennsylvania. The parties have now filed second supplemental

briefs, in which they agree that Jackson never pleaded guilty to

the charge contained in this indictment, and that remand is

required. The Government has also moved to file a supplemental

appendix.

Jackson did not object to the entry of a judgment of

conviction or to his sentence on the felon-in-possession count from

the Western District of Pennsylvania. We therefore review the

district court’s failure to hold a guilty plea hearing pursuant to

Fed. R. Crim. P. 11 for plain error. United States v. Vonn, 535

U.S. 55, 58-59 (2002). The Government concedes that the district

court’s failure to hold a Rule 11 hearing was error that was plain

and that affected Jackson’s substantial rights.

The procedures governing a guilty plea provide that

“[b]efore the court accepts a plea of guilty or nolo contendere,

the defendant may be placed under oath, and the court must address

the defendant personally in open court.” Fed. R. Crim. P.

11(b)(1); see also United States v. DeFusco, 949 F.2d 114, 116 (4th

Cir. 1991) (“In reviewing the adequacy of compliance with Rule 11,

this Court should accord deference to the trial court’s decision as

to how best to conduct the mandated colloquy with the defendant.”).

We agree that the entry of a judgment reflecting that Jackson was

convicted of a crime for which he neither pleaded guilty nor

received a jury trial was error that was plain, and that affected

his substantial rights. Although Jackson received a concurrent

sentence on the firearm count contained in the Pennsylvania
*In light of this disposition, we find it unnecessary to

address the allegations of sentencing error in the Anders brief or

Jackson’s pro se supplemental brief.

- 4 -

indictment, the fact of an improper conviction prejudices his

substantial rights. Rutledge v. United States, 517 U.S. 292,

301-03 (1996).

In accordance with Anders, we have reviewed the record in

this case and have found no other meritorious issues for appeal.

We therefore affirm Jackson’s conviction on the drug conspiracy

count contained in the indictment returned in the Western District

of Virginia. We vacate Jackson’s conviction on the

felon-in-possession count contained in the indictment transferred

from the Western District of Pennsylvania, and vacate the

sentence.*

 We remand to the district court for resentencing and

such other proceedings as may be appropriate. United States v.

Khan, 822 F.2d 451, 454-55 (4th Cir. 1987).

We grant the Government’s motion to file a supplemental

joint appendix, but deny Jackson’s counsel’s motion to withdraw

from representation. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART,

VACATED IN PART, AND REMANDED