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United States v. Batemon

United States Court of Appeals, Eighth Circuit

April 10, 2015

United States of America, Plaintiff - Appellee,
v.
Billie Gene Batemon, Defendant - Appellant

Submitted December 12, 2014

Appeal from United States District Courtfor the Eastern District of Arkansas - Little Rock.

For United States of America, Plaintiff - Appellee: Chris Givens, Edward O. Walker, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR.

Billie Gene Batemon, Defendant - Appellant, Pro se, Forrest City, AR.

For Billie Gene Batemon, Defendant - Appellant: Larry R. Froelich, Fayetteville, AR.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

OPINION

COLLOTON, Circuit Judge.

Billie Gene Batemon pleaded nolo contendere to one count of distributing cocaine base. The district court[1] sentenced Batemon to thirty-nine months' imprisonment. On appeal, Batemon raises arguments concerning the acceptance of his plea and the conduct of his sentencing hearing. We conclude that there is no basis for relief and therefore affirm the judgment.

A grand jury charged Batemon with one count of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Batemon--represented by court-appointed counsel--pleaded nolo contendere, and the parties reconvened for a sentencing hearing. After calculating the advisory sentencing guideline range and considering the factors set forth in 18 U.S.C. § 3553(a), the court sentenced Batemon to a term of imprisonment.

Before the proceeding adjourned, Batemon spoke up and complained that his attorney had predicted a sentence of probation and failed to perform adequately. Batemon accused counsel of convincing him to plead guilty in order to receive a probationary sentence, and he declared himself innocent of the charged offense. Counsel denied the allegations, and the court relieved Batemon's attorney of his appointment based on Batemon's allegations. Insofar as Batemon's comments amounted to a motion, the court denied it and then closed the hearing.

On appeal, Batemon argues that the district court violated his constitutional right to the assistance of counsel when the court relieved Batemon's counsel of his appointment before the end of the sentencing hearing. Sentencing, of course, is a critical stage of a criminal proceeding at which an accused is entitled to the assistance of counsel, but the court already had imposed sentence in this case before counsel was relieved. Batemon contends that his comments to the court were a motion to withdraw his plea, and that he might have formulated the motion more effectively if

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assisted by counsel. Even assuming the colloquy after imposition of sentence was a critical stage, Batemon must show that any deprivation of counsel caused him prejudice. See United States v. Blum, 65 F.3d 1436, 1441-42 (8th Cir. 1995). Once the court imposed sentence, Batemon was forbidden by rule to withdraw his plea, Fed. R. Crim. P. 11(e); United States v. Reyes-Contreras, 349 F.3d 524, 525 (8th Cir. 2003) (per curiam), so the absence of counsel could not have caused prejudice. Batemon does not identify any other way in which he might have been prejudiced by the court's post-sentencing decision to relieve counsel.

Batemon next contends the district court violated Federal Rule of Criminal Procedure 11(b)(1)(M) at the plea hearing. This rule requires the court to inform a defendant of, and to determine that he understands, " the court's obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. ยง 3553(a)." Batemon did not object to the plea procedure on this ground, ...


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