United States v. Trusdale , 38 F. App'x 485 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6424
(D.C. No. 99-CR-177-A)
TOBY R. TRUSDALE, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and BRORBY , Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Toby R. Trusdale appeals from the district court’s entry of
judgment and the sentence imposed following acceptance of his guilty plea.
Defendant pled guilty to one count of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of
possession of a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c). He was sentenced to 240 months on the drug charge and 60
months on the firearm possession charge, to be served consecutively.
On appeal, defendant argues that his plea to the firearm possession charge
was not supported by a sufficient factual basis. The government has filed a
motion to dismiss this appeal on the ground that, as a part of the plea agreement,
defendant waived his right to appeal unless his sentence was above the applicable
guideline range or changes in the controlling law having retroactive effect
occurred.
We must first determine whether the plea agreement was valid as the
validity of a waiver–of–appeal provision hinges on the validity of the plea
agreement. United States v. Black , 201 F.3d 1296, 1299 (10th Cir. 2000). A
“knowing and voluntary waiver of the statutory right to appeal his sentence is
generally enforceable.” Id. at 1300 (quotation omitted). Thus, we will enforce
the waiver and dismiss the appeal when defendant does “not allege that he did not
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knowingly and voluntarily accept the appellate waiver” or that it was in any other
way unlawful. United States v. Elliott , 264 F.3d 1171, 1174-75 (10th Cir. 2001).
“The longstanding test for determining the validity of a guilty plea is
‘whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.’” Hill v. Lockhart , 474
U.S. 52, 56 (1985) (quoting North Carolina v. Alford , 400 U.S. 25, 31 (1970)).
Defendant does not allege that his plea was involuntary either because he
did “not understand the nature of the constitutional protections” he waived or
because he so incompletely understood “the charge that his plea cannot stand as
an intelligent admission of guilt.” Henderson v. Morgan , 426 U.S. 637, 645 n.13
(1976). Rather, in an attempt to avoid dismissal of his appeal based on waiver,
defendant, in his pro se brief, argues that he was under the influence of narcotic
pain medication and, thus, was unable to enter a knowing and voluntary plea. He
also contends that he entered the plea in an effort to obtain the surgery he
required due to gunshot wounds he suffered at the time of his arrest.
The Summary of Facts (enumerating each right defendant was waiving and
indicating defendant’s understanding thereof) clearly shows that he was properly
advised of and understood his trial rights. This is not a situation where the
waiver of important federal rights is presumed based on a silent record. See, e.g. ,
Boykin v. Alabama , 395 U.S. 238, 243 (1969).
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Defendant’s conclusory statements that he was under the influence of
narcotic pain medication and, thus, was unable to enter a knowing and voluntary
plea are insufficient to overcome his sworn statements in open court during the
plea hearing that he was knowingly and voluntarily executing the guilty plea and
waiver of rights.
[R]epresentations of the defendant . . . as well as any findings made
by the judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings. Solemn declarations in open court
carry a strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to
summary dismissal . . . .
Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir. 1996) (quotation omitted); see also
Black , 201 F.3d at 1300 (defendant’s later allegation that a toothache was so
severe he could not voluntarily consent to the plea did not override his sworn
statement at plea hearing that he was not under the influence of drugs, his mind
was clear, and no circumstances were forcing him to plead guilty).
Further, the fact that defendant entered the plea in an attempt to obtain
other benefits does not negate the voluntariness of that plea. See, e.g. , id. ; Brady
v. United States , 397 U.S. 742, 757 (1970) (voluntary plea “does not become
vulnerable” because plea rested on faulty premise).
Concluding that defendant entered a voluntary and intelligent plea, we next
examine whether the waiver of appeal is enforceable. “If [the] waiver is
effective, we would certainly overreach our jurisdiction to entertain this appeal
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when the plea agreement deprived Defendant of the right to appeal.” United
States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000). “To avoid dismissal of his
appeal, Defendant must show why we should not enforce the waiver provision of
the plea agreement.” Id.
Defendant contends his appeal should not be dismissed because a waiver of
appellate rights is not enforceable in appeals concerning the attempted withdrawal
of a guilty plea, sentences that exceed the statutory maximum, cases where the
plea agreement was silent in regard to the sentencing range, and other public
policy constraints. Defendant notes that his plea agreement did not state any drug
quantity and did not indicate the applicable guideline sentencing range.
Defendant concludes the trial court, therefore, had authority to impose any
sentence within the guideline maximum and to arbitrarily pick any guideline it
deemed appropriate thereby violating public policy.
None of these speculative situations apply to defendant. Defendant did not
attempt to withdraw his guilty plea, his sentence was within the statutory
maximum, and the plea agreement set forth the sentencing range. Defendant
raised no objection to the guidelines applied by the court, nor does he allege here
that the court arbitrarily picked the guideline used.
[A]greements waiving the right to appeal are subject to certain
exceptions, including where the agreement was involuntary or
unknowing, where the court relied on an impermissible factor such as
race, or where the agreement is otherwise unlawful. In addition, a
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waiver may not be used to preclude appellate review of a sentence
that exceeds the statutory maximum[] or to deny review of a claim
that the agreement was entered into with ineffective assistance of
counsel.
United States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001) (quotation
and citations omitted), cert. denied , 122 S. Ct. 821 (2002).
We conclude that defendant knowingly, intelligently, and voluntarily both
entered his guilty plea and accepted the waiver of appeal provision contained
therein. Thus, we enforce the waiver and DISMISS this appeal.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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