United States v. Howard Alfred Henry, Jr. ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 05, 2009
No. 07-10702 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60200-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOWARD ALFRED HENRY, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 5, 2009)
Before TJOFLAT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
After pleading guilty, Howard Alfred Henry, Jr., proceeding pro se, appeals
his conviction and 30-month sentence for mail fraud. After review, we affirm in
part and dismiss in part.
I. HENRY’S PRO SE STATUS
Henry retained attorney Jason Kreiss to represent him in the district court.
After the district court entered its judgment and conviction, Henry filed a notice of
appeal; Kreiss moved in the district court to withdraw as Henry’s counsel. The
district court held a hearing on Kreiss’s motion, and both Kreiss and Henry
appeared. After the hearing, the district court granted Kreiss’s motion to withdraw
as Henry’s counsel. Also, because Henry informed the court that he still owned
multiple properties, the district court determined that he was not indigent and thus
declined to appoint new counsel to represent him on appeal.
At the end of the hearing, Henry indicated that he wanted Kreiss to file a
notice with this Court voluntarily dismissing his appeal so he could file a 28 U.S.C.
§ 2255 motion to vacate. However, Henry later informed this Court that he wanted
to withdraw the notice dismissing his appeal. Although this Court has sent Henry
multiple letters regarding appointment of counsel, Henry has not filed a motion for
appointment of counsel on appeal. Instead, he has filed a pro se appellate brief.1
Thus, we will address the issues raised in Henry’s pro se appeal.
1
Henry also has filed a pro se motion to supplement the record, which we hereby grant.
2
II. DISCUSSION
First, Henry alleges that the district court lacked subject matter jurisdiction
because the indictment did not charge him with a federal mail fraud offense.2
Henry pled guilty to one count of mail fraud, in violation of 18 U.S.C. § 1341.
The indictment alleged that Henry and his codefendants devised a fraudulent
scheme of creating false deeds that conveyed real property from unsuspecting
property owners to the defendants or their nominees, caused the deeds to be
recorded in the public record, and used the deeds either to sell the property or to
secure mortgage loans. The indictment further alleged that they caused documents
to be transmitted by the United States Postal Service and private and commercial
interstate carriers “for the purpose of executing the scheme and artifice to defraud.”
The mail fraud count, to which Henry pled guilty, charged that he and his
codefendants caused “[d]ocuments and checks related to the sale of property” in
Fort Lauderdale, Florida to be “transmitted via United Parcel Service, a
commercial interstate carrier,” from a Florida title company to a Fort Lauderdale
county tax collector’s office.
The federal mail fraud statute encompasses transactions occurring by use of
“any private or commercial interstate carrier,” 18 U.S.C. § 1341, even if the
2
“The district court’s subject-matter jurisdiction is a question of law subject to de novo
review.” United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998).
3
conduct charged took place entirely intrastate, United States v. Hasner, 340 F.3d
1261, 1270 (11th Cir. 2003). Thus, the district court had subject matter jurisdiction
over the mail fraud charges against Henry, and we affirm Henry’s conviction.
Second, Henry seeks to challenge the loss amount used at sentencing.
However, Henry’s written plea agreement contained a sentence appeal waiver that
waived his right to appeal his sentence unless he was sentenced above the statutory
maximum or the government appealed.3 A sentence appeal waiver is enforceable if
it is entered into knowingly and voluntarily. United States v. Bushert, 997 F.2d
1343, 1350 (11th Cir. 1993). This requirement is satisfied by a showing “that
either (1) the district court specifically questioned the defendant concerning the
sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear
from the record that the defendant otherwise understood the full significance of the
waiver.” Id. at 1351.
Henry’s sentence appeal waiver is valid and enforceable because the district
court specifically questioned Henry about the sentence appeal waiver at the plea
colloquy and ensured that Henry understood the full significance of the waiver. In
response to the district court’s questions, Henry said that (1) he understood that he
normally would have a right to appeal his sentence, (2) he knew that his plea
3
We review de novo the validity of a sentence appeal waiver. United States v.
Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).
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agreement contained a waiver of those appeal rights with two limited exceptions,
(3) he had discussed his right to appeal with his attorney, and (4) he agreed to the
appeal waiver freely and voluntarily. Because Henry entered into a valid,
enforceable sentence appeal waiver and his sentence claim on appeal does not fall
within the limited exceptions to the waiver, we dismiss his appeal with prejudice as
to his sentencing claim. See United States v. Buchanan, 131 F.3d 1005, 1009 (11th
Cir. 1997) (stating that an appeal presenting claims that fall within an enforceable
sentence appeal waiver should be dismissed).
Finally, Henry seeks to raise several claims of ineffective assistance of trial
counsel on appeal. “We will not generally consider claims of ineffective assistance
of counsel raised on direct appeal where the district court did not entertain the
claim nor develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284
(11th Cir. 2002). Because Henry did not raise his ineffective assistance of counsel
claims in the district court and did not develop a sufficient factual record for
review at this time, we dismiss these claims without prejudice to Henry’s remedy
under 28 U.S.C. § 2255. See United States v. Khoury, 901 F.2d 948, 969 (11th
Cir. 1990).
AFFIRMED IN PART, DISMISSED WITH PREJUDICE IN PART,
AND DISMISSED WITHOUT PREJUDICE IN PART.
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