NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0623n.06

No. 13-6299

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANKIE D. CRUM,

Defendant-Appellant.

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF 

TENNESSEE

BEFORE: COLE, Chief Judge; MOORE, and CLAY, Circuit Judges.

CLAY, Circuit Judge. Defendant Frankie D. Crum appeals from the judgment entered 

by the district court on December 12, 2012, sentencing Crum to two concurrent 100-month terms 

of imprisonment for conspiring to distribute oxycodone and marijuana in violation of 21 U.S.C. 

§§ 846 and 841(a)(1), (b)(1)(C).

On appeal, Crum challenges the factual basis of his guilty plea for the marijuana offense 

and raises an ineffective assistance of trial counsel claim. For the following reasons, we 

AFFIRM the judgment of the district court. 

I. BACKGROUND

A. Procedural History

Crum was charged with three drug offenses: (1) conspiring to distribute and possess with 

intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 
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841(a)(1), (b)(1)(A); (2) conspiring to distribute and possess with intent to distribute at least one 

thousand kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); and 

(3) conspiring to distribute and possess with intent to distribute oxycodone, in violation of 21 

U.S.C. §§ 846 and 841(a)(1), (b)(1)(C). 

On March 8, 2012, Crum pleaded guilty to the oxycodone conspiracy count and a lesser 

included cocaine conspiracy offense. The district court rejected this plea agreement, finding that 

the facts to which Crum stipulated were insufficient to support the cocaine charge. On April 11, 

2012, Crum entered an amended guilty plea to the oxycodone conspiracy charge and to a lesser 

included marijuana conspiracy offense—conspiracy to distribute and possess with intent to 

distribute at least fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1), 

(b)(1)(C). The district court accepted this amended plea agreement and, on December 12, 2012, 

sentenced Crum to 100 months of imprisonment for each count to run concurrently. 

On September 27, 2013, Crum sent a pro se letter to the district court to inquire about the 

status of his direct appeal. However, no direct appeal had been filed by Crum’s attorney. The 

court construed Crum’s September 27, 2013 letter as a notice of appeal and transferred the notice 

to this Court. We accepted the notice on December 17, 2013, reasoning that, although the notice

was untimely, adjudication of Crum’s direct appeal would be more efficient than adjudication of 

the same issues through a 28 U.S.C. § 2255 motion. 

At the time that we decided to accept Crum’s untimely notice of appeal, Crum had 

already filed a § 2255 motion asserting ineffective assistance of trial counsel. The district court

ultimately dismissed his § 2255 motion without prejudice on the grounds that “a defendant who 

has a direct appeal pending may not maintain a 28 U.S.C. § 2255 action, absent extraordinary 

circumstances.” (R. 387, Memorandum, Page ID # 2556.) The district court denied issuance of a 
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certificate of appealability. On March 15, 2014, Crum filed a pro se notice of appeal as to the 

district court’s dismissal of his § 2255 motion along with a request to consolidate his direct appeal 

with his § 2255 motion. We construed Crum’s filing as an application for a certificate of 

appealability, which we denied on July 18, 2014. Accordingly, Crum’s direct appeal is the only 

matter currently before us. 

B. Factual History

In his amended plea agreement, Crum stipulated to the following facts. From sometime 

in August 2005 to June 29, 2011, Crum assisted his cousin and other individuals in the 

distribution of cocaine, oxycodone, and marijuana.1 This assistance included Crum’s 

participation in organized trips to various pain clinics in Florida and Georgia to obtain “mass 

quantities” of oxycodone pills, which Crum and others then transported back to Tennessee. (R. 

200, Amended Plea Agreement, Page ID # 1248.) Crum’s plea agreement included detailed 

information about these trips and his assistance in the distribution of Oxycodone. On appeal, 

Crum does not challenge the validity of his guilty plea to the Oxycodone offense. He challenges 

only the validity of his guilty plea to the marijuana conspiracy charge. 

With respect to his participation in the marijuana distribution conspiracy, Crum stipulated 

to the following facts:

1) “On January 8, 2010, in a Title III intercepted conversation, [Crum’s cousin] ordered 

a twenty bag of marijuana from [Crum]. [Crum] told [his cousin] that he did not 

have a scale. [Crum’s cousin] authorized [Crum] to eyeball it, but [Crum] said that it 

was impossible to just eyeball it because it was too compressed.” (Id. at 1250.) 

2) “On January 26, 2010 in a Title III intercepted conversation, [Crum’s cousin] told 

[Crum] that he just sold two ounces of marijuana to a customer and almost got 

busted by the police.” (Id. at 1252.) 

 

1

Frankie D. Crum’s cousin and co-conspirator is named Frankie L. Crum. In the interest 

of clarity and to avoid confusion, we refer to Frankie L. Crum as “Crum’s cousin.” 
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3) “On or about February 3, 2010, in a Title III intercepted conversation[], [Crum] 

volunteered to help [his cousin] by driving to Memphis, Tennessee and bringing 

back a large quantity of marijuana to the Greeneville area. [Crum] said that his car 

was in the shop, so [Crum’s cousin] said he could get a rental vehicle for him. 

[Crum] asked who would be going to Memphis and [his cousin] told him it would 

only be him, if he agreed to be the driver, and co-defendant Marco Antonio Rojas. 

[Crum’s cousin] told [Crum] that Rojas would be driving in a separate vehicle. 

[Crum] asked how much marijuana he would be picking up in Memphis and 

bringing back to Greeneville. [Crum’s cousin] told [Crum] it could [be] at least 200 

pounds, depending upon how much they could fit in the trunk. [Crum] told [his 

cousin] they needed to talk in person because [Crum] did not trust talking about 

these matters over the phone and [his cousin] agreed. Later that day, in another Title 

III intercepted conversation, [Crum] told [his cousin] that he wanted to go to 

Memphis at night and drive back to Greeneville with the marijuana in the day time. 

[Crum’s cousin] told [Crum] that he would be talking to Rojas again soon and would 

call [Crum] again after that with more details. The evidence shows that co-defendant 

Tracy Haney rented a car for [Crum’s cousin] and Billy Gene Taylor ended up 

driving it to Memphis, in lieu of [Crum]. On February 6, 2010, during the return trip 

to Greeneville, the rental vehicle driven by Taylor was pulled over. During a 

resulting consensual search of the vehicle, agents found seven bundles of marijuana 

weighing approximately 144 pounds in the trunk.” (Id. at 1253.)

On the basis of these stipulated facts and Crum’s responses during his plea colloquy, the 

district court found that the plea was knowing and voluntary and based on a sufficient factual 

basis. 

II. DISCUSSION

A. Jurisdiction

As a threshold consideration, we note that the only matter properly before us at this time 

is Crum’s direct appeal from the district court’s judgment. Crum spends a substantial portion of 

his appellate briefing arguing that the Court should also consider claims pertaining to the district 

court’s dismissal of his § 2255 motion. However, we already denied Crum’s request for a 

certificate of appealability in that matter in an order filed on July 18, 2014. “Unless a circuit 
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justice or judge issues a certificate of appealability, an appeal may not be taken to the court of 

appeals from . . . the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). 

The Supreme Court has recognized that the language of § 2253(c) is jurisdictional, and that 

absent a certificate of appealability, “federal courts of appeals lack jurisdiction to rule on the 

merits of appeals from habeas petitioners.” Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012)

(quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted). 

Consequently, we may consider only Crum’s direct appeal from the district court’s judgment.

In his appellate briefing, Crum raises the possibility that we may lack jurisdiction to 

consider his direct appeal because his notice of appeal was untimely. Appellant’s Br. at 12. Rule

4(b)(1)(A) of the Federal Rules of Appellate Procedure provides that:

In a criminal case, a defendant’s notice of appeal must be filed in the district 

court within 14 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of the government’s notice of appeal. 

Crum contends that “the time limits of Rule 4(b) are an inflexible claim-processing rule which a 

court of appeals is bound to enforce when the United States raises the issue.” Appellant’s Br. at 

12. Indeed, we have previously held that “[w]e are required to dismiss late-filed criminal 

appeals when the government has raised the issue.” United States v. Dominguez, 513 F. App’x 

458, 463 (6th Cir. 2013). However, Rule 4(b) is not jurisdictional, and we are not required to 

dismiss late-filed criminal appeals where, as here, the government has not raised the issue. See 

United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011) (per curiam). 

We previously determined that Crum’s appeal should not be dismissed as untimely.

Since the government has not argued otherwise, we have jurisdiction to consider Crum’s appeal 

despite Crum’s suggestions to the contrary.
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B. Validity of Crum’s Guilty Plea

Crum’s primary argument on appeal is that the district court erred in accepting Crum’s 

guilty plea to a marijuana conspiracy, because the plea lacked a factual basis as required by Rule 

11(b)(3) of the Federal Rules of Criminal Procedure. 

1. Standard of Review 

Where, as here, a defendant fails to raise an objection in the district court, this Court 

reviews a district court’s determination that a guilty plea has a sufficient factual basis for plain 

error. United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir. 2007). To establish plain 

error, a defendant must demonstrate:

(1) that an error occurred in the district court; (2) that the error was plain, i.e., 

obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) 

that this adverse impact seriously affected the fairness, integrity or public 

reputation of the judicial proceedings.

United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). Moreover, to secure relief for an 

unpreserved Rule 11 violation, a defendant must demonstrate “a reasonable probability that, but 

for the error, he would not have entered the plea.” United States v. Mobley, 618 F.3d 539, 544 

(6th Cir. 2010) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)). 

2. Analysis

Pursuant to Rule 11(b)(3) of the Federal Rules of Criminal Procedure, “[b]efore entering 

judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” 

This rule is designed to “protect a defendant who is in the position of pleading voluntarily with 

an understanding of the nature of the charge but without realizing that his conduct does not 

actually fall within the charge.” McCarthy v. United States, 394 U.S. 459, 467 (1969). The rule 

itself “does not provide any guidance concerning the steps a district court should take to ensure 

that a factual basis exists.” McCreary-Redd, 475 F.3d at 722. However, we have previously 
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explained that “[t]he ideal means to establish the factual basis for a guilty plea is for the district 

court to ask the defendant to state, in the defendant’s own words, what the defendant did that he 

believes constitutes the crime to which he is pleading guilty.” Mobley, 618 F.3d at 545 (quoting 

United States v. Tunning, 69 F.3d 107, 112 (6th Cir. 1995)). Nonetheless:

This ideal method is by no means the only method . . . . [T]he district court may 

determine the existence of the . . . factual basis from a number of sources, 

including a statement on the record from the government prosecutors as well as a 

statement from the defendant. And, of course, it is possible that witnesses may be 

called to state the factual basis with the defendant providing confirmation.

Id. (internal quotation marks omitted).

In this case, the district court acknowledged that it needed to “determine that there is an 

adequate basis for the guilty plea[]” prior to accepting Crum’s plea. (R. 383, Second Plea 

Transcript, Page ID # 2488.) The court then proceeded to ascertain that Crum understood the 

elements of the crime, and had read and agreed with the statement of stipulated facts. Crum’s 

argument centers on the content of the stipulated facts. He contends that, even accepted as true, 

the stipulated facts fail to support the “agreement” element of criminal conspiracy.2 

The elements of a conspiracy to distribute marijuana under 21 U.S.C. §§ 846 and 841 are: 

(1) an agreement to violate the drug laws, (2) knowledge and intent to join the conspiracy, and 

(3) participation in the conspiracy. United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009).

An agreement to enter a conspiracy need not be explicit. Rather, “a tacit agreement or mutual 

understanding” is sufficient. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

 

2

For the first time in his reply brief, Crum argues that the factual stipulations also fail to 

support the “participation” element of conspiracy. Reply Br. at 4. However, he waived this 

argument by failing to raise it in his initial brief. Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 

2010) (“We have consistently held . . . that arguments made to us for the first time in a reply 

brief are waived.”). Crum’s initial brief solely argues that the stipulated facts do not support the 

“agreement” element of conspiracy. 
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The district court did not commit plain error in finding that Crum’s stipulated facts were 

sufficiently indicative of an agreement to violate drug laws to support his marijuana conspiracy 

conviction. The statement of stipulated facts includes a summary of a Title III intercepted 

conversation in which Crum volunteered to help his cousin drive to Memphis in order to 

transport “a large quantity of marijuana to the Greeneville area.” (R. 200, Amended Plea 

Agreement, Page ID # 1253.) Upon learning that Crum did not have access to a car, Crum’s 

cousin offered to rent a vehicle for Crum to use. Crum proceeded to discuss logistics with his 

cousin and then suggested that they meet to talk in person because he did not “trust talking about 

these matters over the phone.” (Id.) In a subsequent conversation that day, Crum told his cousin 

that “he wanted to go to Memphis at night and drive back to Greeneville with the marijuana in 

the day time.” (Id.) Crum’s cousin then told Crum that he would be speaking with another 

individual about the plan soon, and would call Crum after that conversation to provide him with 

more details. 

Pointing to the fact that he did not ultimately drive the car for his cousin, Crum contends 

that these factual stipulations merely indicate that he volunteered to participate in the unlawful 

activity, but provide no basis for the conclusion that his cousin ever “tacitly or expressly agreed 

to accept [Crum’s] offer.” Appellant’s Br. at 15. To the contrary, the extended logistical 

conversation between Crum and his cousin, including his cousin’s offer to rent a car for Crum to 

use, is suggestive of an agreement to violate the drug laws. Furthermore, the latter conversation 

between Crum and his cousin, in which his cousin stated that he would call Crum to give him 

more details, implies that his cousin had accepted Crum’s offer. Although the stipulated facts do 

not include a “formal agreement” between Crum and his cousin, the intercepted phone calls can 

“reasonably be interpreted” as establishing their agreement to join a common plan. Paige, 470 
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F.3d at 608. It is therefore neither “obvious” nor “clear” that the district court erred in 

determining that the stipulated facts accepted by Crum provided a sufficient factual basis to 

support the agreement element of conspiracy. Koeberlein, 161 F.3d at 949.

C. Ineffective Assistance of Trial Counsel

Crum argues that his trial counsel was ineffective by failing to file an appeal from the 

district court’s judgment despite being asked by Crum to do so. However, Crum does not appear 

to be raising this argument as part of his direct appeal, but rather as a claim related to his § 2255 

motion. As was previously discussed, we lack jurisdiction to review Crum’s § 2255 motion and 

cannot consider his ineffective assistance of counsel claim to the extent that he is raising it as 

part of his § 2255 motion. 

Even assuming that Crum intended to raise his ineffective assistance of counsel claim as 

part of his direct appeal, we are ill-equipped to consider his claim. “As a general rule, a 

defendant may not raise ineffective assistance of counsel claims for the first time on direct 

appeal, since there has not been an opportunity to develop and include in the record evidence 

bearing on the merits of the allegations.” United States v. McAllister, 693 F.3d 572, 586 (6th 

Cir. 2012) (quoting United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005)). Resolving 

ineffective assistance of counsel claims typically requires a factual inquiry that appellate courts 

are not well equipped to undertake. United States v. Brown, 332 F.3d 363, 368-69 (6th Cir. 

2003). We have therefore “routinely concluded that such claims are best brought by a defendant 

in a post-conviction proceeding under 28 U.S.C. § 2255.” Martinez, 430 F.3d at 338. Such is 

the case with this appeal. 

Crum’s argument turns on findings of fact that we would be unable to make at this 

juncture. Beyond the bare assertion that he asked his trial counsel to file an appeal that was 
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never filed, Crum does not point to any facts in the record that support his claim. Accordingly, 

we decline to address the merits of Crum’s ineffective assistance of counsel claim at this time.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.