UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4858

CARL RICHARD FELDER, JR., a/k/a

Rab,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4922

CARL RICHARD FELDER, JR., a/k/a

Rab,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CR-99-751)

Submitted: October 22, 2003

Decided: April 6, 2004

Before LUTTIG, MOTZ, and KING, Circuit Judges.

No. 02-4858, Affirmed in part, vacated in part, and remanded, No.

02-4922, Affirmed by unpublished per curiam opinion. 
COUNSEL

Jessica Salvini, SALVINI & BENNETT, L.L.C., Pickens, South Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attorney,

Miller W. Shealy, Jr., Assistant United States Attorney, Charleston,

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Carl Richard Felder appeals his conviction and 240 month sentence

imposed upon his guilty plea to one count of conspiracy to possess

with intent to distribute cocaine base in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2000). He also appeals the district court’s denial

of his motion to reconsider his sentence. On appeal, Felder’s counsel

raises two issues: (1) whether the district court abused its discretion

when it denied Felder’s motion to withdraw his guilty plea, and (2)

whether the district court conducted a proper Rule 11 hearing. See

Fed. R. Crim. P. 11. Felder’s first supplemental pro se brief raises

three additional issues: (1) whether the indictment was defective;

(2) whether the district court had jurisdiction to sentence Felder under

21 U.S.C. §§ 841(a)(1), 846; and (3) whether the district court warned

Felder of a mandatory minimum sentence during the Rule 11 hearing.

Finally, Felder’s second supplemental brief asserts that the district

court erred in determining the drug quantity attributable to him and

further erred by sentencing him as a career offender under United

States Sentencing Guidelines Manual § 4B1.1 (2002). 

Felder’s first contention on appeal is that the district court abused

its discretion when it denied his pro se motion to withdraw his guilty

plea. The district court’s denial of a motion to withdraw a guilty plea

is reviewed for abuse of discretion. United States v. Ubakanma, 215

2 UNITED STATES v. FELDER
F.3d 421, 424 (4th Cir. 2000). A defendant does not have an absolute

right to withdraw a guilty plea. United States v. Moore, 931 F.2d 245,

248 (4th Cir. 1991). Rather, a defendant bears the burden of demonstrating that a "fair and just reason" supports his request to withdraw

his plea. Id. Factors considered in determining whether a defendant

has shown a fair and just reason for withdrawing his guilty plea

include: (1) whether the defendant has offered credible evidence that

the plea was not knowing or voluntary; (2) whether the defendant has

credibly asserted his legal innocence; (3) whether there has been a

delay between the entering of the plea and the motion to withdraw;

(4) whether the defendant had close assistance of competent counsel;

(5) whether withdrawal will prejudice the government; and finally, (6)

whether withdrawing the guilty plea will inconvenience the court and

waste judicial resources. Id. Because all six of the Moore factors

weigh against Felder, we conclude that the district court did not abuse

its discretion in denying Felder’s motion to withdraw his guilty plea.

Felder contends the court violated Rule 11(c)(3)(B) by failing to

advise him that he would be unable to withdraw his plea if the court

did not accept the sentencing recommendations contained in his plea

agreement. This court closely scrutinizes the Rule 11 colloquy and

has emphasized that an appropriately conducted guilty plea proceeding raises a strong presumption that the plea is final and binding.

United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

Felder’s challenge to the adequacy of the Rule 11 hearing is not supported by the record. Accordingly, we conclude the district court conducted a proper Rule 11 hearing. 

Felder has also appealed the district court’s denial of his motion to

reconsider his sentence. Because Felder has failed to raise any arguments in his brief regarding the denial of his motion to reconsider his

sentence, the review of that issue is waived. See Canady v. Crestar

Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997)(holding issues

raised in notice of appeal but not briefed are deemed waived). 

Next, Felder asserts his indictment was defective because it did not

state the date of his alleged crime with specificity and failed to give

him notice of the exact crime for which he was being charged. In

order for an indictment to be valid, it must: "(1) allege the essential

facts constituting the offense; (2) allege each element of the offense,

UNITED STATES v. FELDER 3
so that fair notice is provided; and (3) be sufficiently distinctive that

a verdict will bar a second prosecution for the same offense." United

States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003). A review of the

indictment demonstrates that Count One of the superceding indictment meets the criteria enumerated in Bolden. 

Felder also asserts that the district court lacked jurisdiction to convict and sentence him under 21 U.S.C. §§ 841(a), 846, because his

indictment did not specify the drug quantities for which he would be

liable. Such claims are cognizable under Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). However, Felder cannot establish an Apprendi

error because his 240 month sentence did not exceed the statutory

maximum penalty for these offenses set forth in § 841. United States

v. Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000); see also United

States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001). Accordingly, we

reject Felder’s challenges to his indictment. Similarly, we reject

Felder’s Apprendi based challenges to the court’s calculation of drugs

attributable to him. 

Felder next avers the district court erred during the Rule 11 hearing

by failing to inform him of the statutory minimum sentence applicable

to his case. Felder alleges that he was subject to a five year minimum

sentence, but that the district court wrongly informed him at his plea

hearing that there was no mandatory minimum sentence. Because a

drug quantity was not charged in the indictment, the sentencing provision in § 841(b)(1)(C) is applicable. United States v. Promise, 255

F.3d 150, 152 (4th Cir. 2001). Section 841(b)(1)(C) has no mandatory

minimum sentence. Therefore, the district court’s statement at the

Rule 11 hearing that there was no mandatory minimum sentence was

correct, and this claim is meritless. 

Finally, Felder challenges the district court’s finding that he qualified as a career offender under USSG § 4B1.1. Felder contends the

court erred by finding that his prior state conviction for aggravated

assault and battery constituted a "crime of violence" within the meaning of USSG § 4B1.2(a). Because Felder did not raise this objection

below, we review it for plain error, requiring Felder to demonstrate

error that is plain, affects substantial rights, and seriously affects the

fairness, integrity or public reputation of judicial proceedings. See

United States v. Olano, 507 U.S. 725, 731-32, 736-37 (1993).

4 UNITED STATES v. FELDER
Because Felder’s conviction was for aggravated assault, it qualifies as

a crime of violence under the career offender guideline. See United

States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996). Thus, we find

no error. 

Felder also contends that the court improperly counted several state

convictions for simple drug possession as controlled substance

offenses under USSG § 4B1.2(b). Felder attempted to object to such

inclusion at his sentencing hearing. We have held that simple possession does not qualify as a controlled substance offense under the

career offender guideline. See United States v. Neal, 27 F.3d 90, 92

(4th Cir. 1994). The sentencing transcript reflects that the court relied

on at least two simple possession offenses in finding that Felder qualified as a career offender. This runs afoul of Neal. 

The record, however, does not clearly demonstrate whether one of

the drug offenses the court relied on, specifically, Felder’s conviction

in South Carolina from July 1992, amounted to mere possession of

crack or possession of crack for distribution. The Presentence Report

reflects the latter, but Felder objected to the characterization of this

offense as a controlled substance offense at sentencing, specifically

contending that while he was charged with this offense he ultimately

pled guilty to simple possession. Apparently based on its belief that

simple possession was sufficient to qualify as a controlled substance

offense, the court did not resolve the discrepancy, but overruled

Felder’s objection on the ground of irrelevancy. We note that Felder

has attached to his supplemental brief documentation purportedly

from the United States Department of Justice that appears to support

his assertion that he was ultimately convicted of mere possession. In

light of the ambiguity regarding the proper characterization of

Felder’s July 1992 conviction involving the possession of crack, and

the fact that the record reveals only one other potentially qualifying

predicate offense under the career offender guideline, we vacate the

district court’s judgment and remand for reconsideration of whether

Felder qualifies as a career offender and, if not, for resentencing.

Accordingly, we grant Felder’s motions to file supplemental briefs,

but we reject the arguments raised therein, except Felder’s contentions regarding the use of simple possession offenses against him in

determining his career offender status. We affirm the district court’s

denial of Felder’s motion to reconsider his sentence. We deny

UNITED STATES v. FELDER 5
Felder’s motion for an en banc hearing. 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. 

No. 02-4858 — AFFIRMED IN PART, VACATED IN PART

AND REMANDED,

No. 02-4922 — AFFIRMED

6 UNITED STATES v. FELDER