United States v. Hargrave ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 9, 2003
Charles R. Fulbruge III
No. 02-30583 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC DEWAYNE HARGRAVE, also
known as Black, also known
as Ceddie, also known as Ced,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(00-CR-52-1-C)
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Cedric Dewayne Hargrave appeals the denial of his motion to
withdraw his guilty plea and his sentence following his guilty-plea
conviction of conspiracy to possess with intent to distribute
cocaine, distribution of cocaine, laundering of monetary
instruments, and unlawful use of a communications facility.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
The ruling on a motion to withdraw a guilty plea is reviewed
only for abuse of discretion. E.g., United States v. Bounds, 943
F.2d 541, 543 (5th Cir. 1991). Hargrave contends that the district
court abused its discretion in denying his motion because it was
only after the plea was entered that the defense learned of facts
that would substantially increase his sentence. Although Hargrave
waived his right to appeal his sentence (with certain exceptions)
as part of his plea, that waiver is enforceable, of course, only if
the plea agreement is valid. See United States v. White, 307 F.3d
336, 343 (5th Cir. 2002).
In denying the motion to withdraw, the district court
considered the seven factors found in United States v. Carr, 740
F.2d 339, 343-44 (5th Cir. 1984), cert. denied, 471 U.S. 1004(1985), and concluded that the plea agreement was valid. Hargrave
has not shown that the court abused its discretion.
Hargrave also contends that the district court failed to
address the basis of his motion to withdraw, i.e., that the plea
was not knowingly and voluntarily entered because there was no
meeting of the minds during the plea negotiations. The knowing and
voluntary factor is one of those the district court considered.
After hearing extensive testimony on what transpired during the
plea negotiations, the district court determined that the plea was
knowing and voluntary because: Hargrave repeatedly indicated that
he understood the legal principles that the court explained to him;
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his education level and business acumen; and his above-average
intelligence. The district court also found it had been explained
to Hargrave that: his actual sentence would be determined by the
Sentencing Guidelines; anything anyone had told him about the
effect of the Guidelines only represented his or her best estimate
of the effect of the Guidelines; and the determination of the
sentence would be by the court. Hargrave has not shown that his
plea was not knowing and voluntary.
Hargrave also maintains that his sentence was excessive
because the district court should have sustained his objections to
the presentence report and that the fine, penalty, and fees should
be vacated. Hargrave does not assert that the waiver provision in
the plea agreement was not knowing and voluntary but only that the
plea agreement itself was not valid. Because Hargrave entered his
plea knowingly and voluntarily, the waiver of appeal is sustained.
See White, 307 F.3d at 343-44. Hargrave’s contention regarding his
sentence is not one of the subjects excepted from the appeal-waiver
and is thus barred.
AFFIRMED
3