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The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-2381

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Darryl Jerome Glover, * District of Minnesota.

* [UNPUBLISHED]

Appellant. *

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 Submitted: June 4, 2003

 Filed: June 13, 2003

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Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.

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PER CURIAM.

Darryl Jerome Glover challenges his conviction and the sentence imposed by

the district court1

 after he pleaded guilty to assaulting a prison guard using a

dangerous weapon, namely a broom, and inflicting bodily injury, in violation of 18

U.S.C. § 111(a)(1) and (b). Glover was sentenced to 57 months imprisonment to run

consecutively to an undischarged prison sentence, and to a concurrent 3-year

supervised release term. On appeal, Glover asserts that counsel was ineffective for

not objecting to the presentence report, for not advocating effectively for Glover at
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sentencing, and for failing to reach a plea agreement with the government; that he

should have received a 3-level decrease for acceptance of responsibility; that the

broom was not a dangerous weapon; that his sentence should have run concurrently

with his undischarged term; and that his plea was not voluntary. We reject these

arguments.

First, Glover’s ineffective-assistance claims should be raised in a 28 U.S.C.

§ 2255 motion, where a full record can be developed regarding counsel’s

performance. See United States v. Clayton, 210 F.3d 841, 845 n.4 (8th Cir. 2000).

We note that contrary to Glover’s assertions, the record shows that defense counsel

did raise Glover’s concerns regarding being on medication, did object to the

presentence report, and did attempt to negotiate a plea agreement with the

government. Second, plea negotiations reached an impasse and Glover did not plead

guilty until the scheduled trial date, and thus we conclude the district court did not err

in denying a 3-level decrease under U.S.S.G. § 3E1.1(b)(2). See United States v.

Chatman, 119 F.3d 1335, 1342 (8th Cir.) (affirming district court’s denial of 3-level

decrease because, despite ongoing plea negotiations and defendant’s stated intention

prior to trial to plead guilty, defendant did not in fact plead guilty until trial date and

government had essentially completed its preparations for trial), cert. denied, 522

U.S. 976 (1997). Third, the record shows that Glover swung the broom with

sufficient force to cause the prison guard bleeding and bruising to his head and body

requiring medical attention, and thus was a “dangerous weapon.” See U.S.S.G.

§ 2A2.2, comment. (n.1) (dangerous weapon “includes any instrument that is not

ordinarily used as a weapon (e.g., a car, a chair, or an ice pick) if such an instrument

is involved in the offense with the intent to commit bodily injury”); § 1B1.1,

comment. (n.1(b)) (“bodily injury” means any significant injury, e.g., injury that is

painful and obvious or is of type for which medical attention ordinarily would be

sought). Fourth, the Guidelines require that Glover’s offense be served consecutively

to his undischarged prison sentence. See U.S.S.G. § 5G1.3(a) (if instant offense was

committed while defendant was serving prison term, sentence for instant offense
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“shall be imposed to run consecutively” to undischarged term); United States v.

Melgar-Galvez, 161 F.3d 1122, 1123 n.2 (7th Cir. 1998) (§ 5G1.3(a) applies to

person who assaults prison guard while serving prison term). Fifth, we conclude

Glover’s plea was knowing and voluntary. The record shows that Glover was found

to be competent when using medication, Glover does not appear to dispute his

competence, and Glover was questioned extensively about his awareness and

understanding of the change-of-plea proceeding. Glover also affirmed at the plea

hearing that his decision to plead guilty was not affected by defense counsel’s

representation, he stated that he hit the prison guard with the broom, and he described

the attack. See United States v. Bahena, 223 F.3d 797, 806-07 (8th Cir. 2000)

(finding plea to be knowing and voluntary where defendant testified under oath that

he understood proceeding, was satisfied with his attorney, and had committed crimes

charged), cert. denied, 531 U.S. 1181 (2001); Nguyen v. United States, 114 F.3d 699,

703 (8th Cir. 1997) (defendant’s representations during plea-taking carry strong

presumption of verity).

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.