United States v. Rodagus Thomas ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2008
THOMAS K. KAHN
No. 07-11055
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00130-CR-001-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODAGUS THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 20, 2008)
Before ANDERSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Rodagus Marilento Thomas appeals his conviction and 126-month sentence
for four counts of fraudulent use of an access device, in violation of 18 U.S.C.
§ 1029(a)(5), and four counts of aggravated identity theft, in violation of 18 U.S.C.
§ 1028(A)(1). Thomas argues on appeal that federal agents induced his initial
interview, and consequently his guilty plea, by a promise to roll all his pending
criminal matters, including state charges, into the federal court proceeding. He
asserts that federal agents interviewed him while knowing that his state-appointed
attorney “was not adequately experienced to advise him on a federal criminal
matter,” which prejudiced Thomas. He also argues that he should have received a
reduction for acceptance of responsibility and that his sentence was unreasonable.
For the reasons set forth more fully below, we affirm.
I.
The entry of a guilty plea waives objection to all non-jurisdictional errors.
United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003). “The Supreme Court
has given finality to guilty pleas by precluding claims of constitutional
deprivations occurring prior to entry of the plea.” Stano v. Dugger, 921 F.2d 1125,
1150 (11th Cir. 1991) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct.
1602, 1608, 36 L. Ed. 2d 235 (1973)). Additionally, we have held that claims of
constitutional deprivations occurring prior to entry of the plea are non-jurisdiction
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defects waived by an unconditional guilty plea. See, e.g., United States v.
Wai-Keung, 115 F.3d 874, 877 (11th Cir. 1997) (per curiam) (holding that a
defendant waived his right to appeal the validity of a search). As a result of the
waiver, “only an attack on the voluntary and knowing nature of the plea can be
sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992).
Thomas, who is counseled, does not raise the issue of the knowing and
voluntary nature of his guilty plea. Therefore, he waived the issues as to the
federal agents interviewing him without his having adequate counsel and inducing
him to cooperate with promises not memorialized in the written plea agreement,
and he abandoned any issue as to the knowing and voluntary nature of his guilty
plea. See Patti, 337 F.3d at 1320; United States v. Cunningham, 161 F.3d 1343,
1344 (11th Cir. 1998) (holding, in a counseled case, that an issue is abandoned
when a defendant fails to offer an argument on that issue on appeal).
Furthermore, to the extent that Thomas raises the issue of ineffective
assistance of counsel, ineffective-assistance-of-counsel claims generally are not
addressed on direct review. United States v. Khoury, 901 F.2d 948, 969 (11th
Cir.), modified by, 910 F.2d 713 (11th Cir. 1990) (holding that “a claim of
ineffective assistance of counsel may not be raised on direct appeal where the
claim has not been heard by the district court nor a factual record developed”). To
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the extent that Thomas alleges that federal agents induced him to cooperate and to
plead guilty with promises outside the plea agreement, his testimony at the change-
of-plea hearing refutes the argument. See United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994) (“There is a strong presumption that the statements made
during the colloquy are true.”). For the foregoing reasons, we affirm Thomas’s
conviction.
II.
Thomas’s plea agreement contained a sentence-appeal waiver. If the
sentence-appeal waiver in Thomas’s plea agreement is valid, Thomas may not raise
any sentencing issues on appeal that are not covered by an exception to the waiver.
See United States v. Benitez-Zapata, 131 F.3d 1444, 1446-47 (11th Cir. 1997)
(dismissing, based on an effective sentence-appeal waiver, an appeal challenging
the district court’s finding that defendant was a minor, instead of a minimal,
participant and the government’s refusal to make a substantial-assistance motion).
Because Thomas, who is counseled, does not contest the voluntariness of the
sentence-appeal waiver, he has waived the issue. See Cunningham, 161 F.3d at
1344 (holding, in a counseled case, that an issue is abandoned when a defendant
fails to offer an argument on that issue on appeal). Thus, Thomas may not
challenge his sentence on appeal.
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In light of the foregoing, Thomas’s conviction and sentence are
AFFIRMED.
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