United States v. Jeffries, Henry Don ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2373
United States of America,
Plaintiff-Appellee,
v.
Henry Don Jeffries,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 98 CR 57--William C. Lee, Chief Judge.
Argued January 10, 2001--Decided September 7, 2001
Before Ripple, Kanne, and Williams, Circuit
Judges.
Kanne, Circuit Judge. On August 27,
1999, Henry Don Jeffries signed a plea
agreement in which he agreed to plead
guilty to one count of mail fraud, pay
restitution in excess of 2.4 million
dollars, and waive his appellate rights
with respect to sentencing. In return,
the government agreed to recommend an
acceptance of responsibility reduction
and to dismiss the remaining five counts
of the indictment. The district court
conducted an extensive Rule 11 colloquy
and then accepted Jeffries’ plea. At
Jeffries’ sentencing hearing, the
district court again reviewed the
parameters of the plea agreement and then
sentenced him to forty-three months
imprisonment.
Jeffries does not attempt to appeal his
sentence, as he clearly waived that right
in his plea agreement. Rather, he seeks
to invalidate the entire plea by arguing
that it was not entered into voluntarily
and knowingly. He alleges that his plea
agreement is invalid because he did not
realize that, if he had gone to trial, he
could have appealed any resulting
conviction. Jeffries also asserts that
his trial counsel was ineffective in
failing to attack the plea as invalid. He
thus seeks to withdraw his plea and go to
trial.
At least initially, the parties disputed
whether Jeffries had the right to seek
judicial review of his plea agreement. We
have explained, however, that even where
a plea agreement waives a defendant’s
appellate rights, the defendant is still
entitled to appeal if "the agreement is
involuntary or otherwise unenforceable."
United States v. Wenger, 58 F.3d 280, 282
(7th Cir. 1995). The government now
recognizes that Jeffries can challenge
the voluntariness of his plea, yet
asserts that his plea agreement is valid
because it was voluntary and "taken in
compliance with Rule 11" of the Federal
Rules of Criminal Procedure. Id. Because
Jeffries did not file a motion to
withdraw his guilty plea in the district
court, we will review the district court
proceedings for plain error. See United
States v. Gilliam, 255 F.3d 428, 433 (7th
Cir. 2001); United States v. Akinsola,
105 F.3d 331, 333 (7th Cir. 1997).
Prior to accepting a guilty plea, a
district court is required to make
certain that a defendant is fully
informed of his rights and capable of
making a decision between the various
choices available to him. United States
v. Fernandez, 205 F.3d 1020, 1024 (7th
Cir. 2000). Rule 11 sets forth detailed
guidelines to ensure that a defendant is
so informed. "Before accepting a plea of
guilty . . . , the court must address the
defendant personally in open court and
inform the defendant of, and determine
that the defendant understands" six
categories of rights that will be
affected by the plea. Fed. R. Crim. P.
11(c). With respect to going to trial,
the rule requires a court to inform the
defendant of:
(3) . . . the right to be tried by a
jury and at that trial the right to the
assistance of counsel, the right to
confront and cross-examine adverse
witnesses, and the right against
compelled self-incrimination; and
(4) that if a plea of guilty . . . is
accepted by the court there will not be a
further trial of any kind, so that by
pleading guilty . . . the defendant
waives the right to a trial.
Id. at (c)(3), (4). Rule 11 does not, by
its terms, require a district court judge
to inform a criminal defendant that if he
went to trial and was convicted, he would
be able to appeal his conviction. The
advisory committee notes recognize that
it might be "desirable to inform a
defendant of additional consequences
which might follow from his plea of
guilty" but the decision to do so lies in
the judge’s discretion. Fed. R. Crim. P. 11
advisory committee’s note. This court has
never held that a judge must advise a
defendant that if he did not plead guilty
but instead went to trial and was then
convicted, his conviction could be
appealed. See, e.g., Wenger, 58 F.3d at
282 (noting that "warnings about waivers
of appeal" are not one of the elements
required to be included in the Rule 11
colloquy). Nor have we found any other
federal circuit court opinions that
address the issue. We do not mean to
suggest that it would not be prudent for
a judge to discuss this issue with the
defendant, we simply decline to find that
Rule 11 requires such a discussion.
Jeffries does not contend that his Rule
11 colloquy was deficient in any other
way, and it seems clear that it was not.
The record created at a Rule 11
proceeding is accorded a "presumption of
veracity," United States v. Standiford,
148 F.3d 864, 868 (7th Cir. 1998)
(quotation omitted), and the record in
this case indicates that the district
court judge complied with every
applicable element of the rule. In sum,
there is no indication that Jeffries’
guilty plea was not knowing and
intelligent.
Thus, we turn to Jeffries’ contention
that his trial counsel was ineffective
for failing to attack the validity of his
plea agreement. Defendants are entitled
to the assistance of counsel, and that
counsel is expected to be reasonably com
petent. See Strickland v. Washington, 466
U.S. 668, 687-91, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). "A defendant who
desires to withdraw his plea because
counsel rendered ineffective assistance
must show that advice he received ’was
not within the range of competence
demanded of attorneys in criminal cases’
and that there is a ’reasonable
probability that, but for counsel’s
unprofessional errors, the result . . .
would have been different.’" United
States v. Gwiazdzinski, 141 F.3d 784, 790
(7th Cir. 1998) (citations omitted); see
also Bridgeman v. United States, 229 F.3d
589, 592 (7th Cir. 2000). Given that
judges are not required to inform
defendants, during a Rule 11 plea
colloquy, that if they went to trial
there would be an opportunity to appeal,
we find that it was not unreasonable for
Jeffries’ attorney to not object to the
validity of the plea on this basis.
Further, the record indicates that
counsel performed competently in all
other respects, evidenced in part by his
ability to secure the dismissal of the
money laundering counts (which carried a
higher sentence than the mail fraud
count) and to negotiate a plea in which
the government agreed to recommend an
acceptance of responsibility reduction.
We thus conclude that Jeffries’ counsel
was not ineffective.
Because we find Jeffries’ plea agreement
to be valid, his conviction is AFFIRMED.