United States v. Rollings ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
May 20, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-6014
TERRY JO ROLLINGS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:11-CR-00064-D-2)
Thomas E. Kimble, Arlington, Texas for Appellant.
Edward J. Kumiega, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, and Steven W. Creager, Special Assistant United States Attorney,
with him on the brief) United States Attorney’s Office, Oklahoma City,
Oklahoma, for Appellee.
Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Terry Jo Rollings pleaded guilty to one count of knowingly possessing
stolen goods. As part of the plea agreement, Rollings waived the right to appeal
his guilty plea, the restitution imposed, and any other aspect of his conviction.
Despite waiving his right to appeal in his plea agreement, Rollings now
wants to challenge his guilty plea. He argues that his guilty plea was not knowing
and voluntary because he was not advised of the court’s authority to order
restitution and because he was not aware of all of the elements of the crime
charged. Since his guilty plea allegedly was not knowing and voluntary, he
claims that his waiver of his right to appeal the plea was likewise invalid. The
government moved to enforce Rollings’s appeal waiver under United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
We conclude that, in determining whether an appellate waiver is knowing
and voluntary under Hahn, we may consider whether the entire plea agreement,
including the plea, was entered knowingly and voluntarily. Because we find that
Rollings’s guilty plea was knowing and voluntary, we AFFIRM the decision of
the district court and GRANT the government’s motion to enforce the appeal
waiver in Rollings’s plea agreement.
I. Background
Rollings entered into a plea agreement in which he pleaded guilty to
stealing a cargo trailer truck. The plea agreement outlined the conduct underlying
his guilty plea. In particular, the agreement stated:
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Defendant agrees to enter a plea of guilty to Count 3 of
the Third Superseding Indictment . . . charging [he]
knowingly possessed and concealed with intent to
convert to their own use, chattels of a value in excess of
$1,000.00 in violation of Title 18, United States Code,
Sections 659 and 2(a).
App. 133. 1 The plea agreement also stated that, to be found guilty of violating 18
U.S.C. §§ 659 and 2(a) as charged in the Third Superseding Indictment, Rollings
was required to admit the basic elements of the crime: (1) he knowingly
concealed and possessed the property described in the Third Superseding
Indictment; (2) he did so “with the intent to deprive the owner of the use or
benefit of the property or goods”; (3) the property was part of interstate or foreign
shipment at the time; and (4) the property was over $1,000 in value. Id.
As part of the agreement, Rollings also signed a plea petition in which he
stated:
I possessed and concealed a North American Cargo
trailer and its contents valued over one thousand dollars
including its contents that was part of interstate
shipment with the intent to deprive the owner of use or
benefit of the property. This was in the Western Dist of
Okla from March 09 to May 2009.
1
Rollings argues that he did not receive a copy of the Third Superseding
Indictment until minutes before the plea hearing, two days after he executed the
plea agreement. But the plea agreement he signed states that he is pleading guilty
to the Third Superseding Indictment, and Rollings admits that the language in the
Third Superseding Indictment is identical to the previous indictment, of which he
was aware.
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Id. at 151. Rollings also affirmed that he knowingly and voluntarily waived his
right to appeal or collaterally challenge his “guilty plea, sentence, restitution
imposed, and any other aspect of his conviction.” Id. at 137.
At the subsequent hearing to approve the plea agreement, the government
summarized the deal, describing the underlying charges and the facts that
supported the plea agreement. Following the prosecutor’s summary, the district
court assessed Rollings’s understanding of the charges and punishment:
THE COURT: Sir, do you believe that you fully
understand the nature of the charges, the possible
punishment, and the constitutional rights you’re entitled
to?
THE DEFENDANT: Yes.
THE COURT: Knowing all the rights that you have and
would be waiving and fully understanding the nature of
the charges against you and the possible punishment,
how do you plead to Count III of the Third Superseding
Indictment? Guilty or not guilty?
THE DEFENDANT: Guilty.
Id. at 216–17. The district court then asked the prosecutor to summarize the
terms of the agreement and question Rollings about the factual basis for his guilty
plea. Also during the plea colloquy, Rollings indicated that he understood the
constitutional rights he was forfeiting by pleading guilty and that he understood
that by pleading guilty he waived the right to appeal or collaterally challenge the
sentence. Following the colloquy with the prosecutor, the district court accepted
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Rollings’s guilty plea, finding that Rollings entered the plea “voluntarily and with
full understanding of the rights being given up, and that there is a factual basis for
[his] plea.” Id. at 226.
II. Analysis
Rollings contends that the appellate waiver was invalid because he did not
knowingly and voluntarily enter the plea agreement containing the appellate
waiver. He bases this contention on two mistakes he claims the district court
made in approving the plea agreement: (1) it misled him about the elements of
the crime to which he pleaded guilty, and (2) it failed to apprise him that it could
order substantial restitution as part of the sentence. In other words, he did not
fully understand his crime or his potential punishment in entering the plea
agreement. According to Rollings, his plea, therefore, was not knowing and
voluntary.
The government asks us to ignore these questions. It points to the appellate
waiver and urges us to confirm the waiver and dismiss the appeal, relying on
Hahn, 359 F.3d at 1325–28. Applying the analytical framework for enforcing
appellate waivers set out in Hahn, the government argues we should limit our
inquiry only to the appellate waiver provision of the plea agreement in
determining whether the agreement itself was entered knowingly and voluntarily.
In response, Rollings argues that our cases require a more holistic review of the
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entire plea agreement, including the guilty plea, to ascertain whether the
agreement was entered knowingly and voluntarily.
We conclude the better reading of the law is that where, as here, the parties
intended the agreement to stand or fall as a whole, we may examine all of the
terms of the plea agreement in deciding whether to enforce an appellate waiver.
A. Hahn and Appellate Waivers
Hahn instructs us to enforce an appellate waiver after a familiar three-step
process. We consider whether (1) “the disputed appeal falls within the scope of
the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily
waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a
miscarriage of justice.” Hahn, 359 F.3d at 1325 (emphasis added). The
defendant bears the burden of establishing these requirements. See id. at 1329.
To resolve the second step of whether the waiver was knowing and
voluntary, Hahn instructs us to look to the plea agreement and the explanation the
district court provided to the defendant. Thus, we ordinarily look to (1) “whether
the language of the plea agreement states that the defendant entered the agreement
knowingly and voluntarily”; and (2) whether the district court conducted “an
adequate Federal Rule of Criminal Procedure 11 colloquy.” 2 Id. at 1325 (citations
2
Federal Rule of Criminal Procedure 11 states, among other things, that
before accepting a guilty plea, the court must address the defendant in open court
and determine that the defendant understands “the nature of each charge to which
the defendant is pleading,” “any maximum possible penalty, including
(continued...)
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omitted). In making this evaluation, we consider the “totality of the
circumstances,” recognizing the “synergistic effect” of both the “express language
of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the
probing inquiry of a proper Rule 11 colloquy.” United States v. Tanner, 721 F.3d
1231, 1234 (10th Cir. 2013) (per curiam). In Hahn we concluded that an
appellate waiver could be knowing and voluntary if the right was voluntarily
relinquished—regardless of “what claims of error, if any, [the defendant] is
foregoing”—because “[t]he whole point of a waiver . . . is the relinquishment of
claims, regardless of their merit.” Hahn, 359 F.3d at 1326 & n.12 (citations
omitted).
Following Hahn, however, the scope of our inquiry in determining whether
defendants knowingly and voluntarily waived their appellate rights has not been
entirely consistent. Instead of looking solely to the defendant’s understanding of
the relinquished rights—such as jury trial, appeal, sentencing certainty—we have
also looked to whether the defendant understood the nature of the charges and the
consequences of the guilty plea itself. Compare, e.g., Tanner, 721 F.3d at
1234–35 (citing evidence that the defendant understood the terms of the plea
agreement, including the factual basis for the plea, and the consequences of the
2
(...continued)
imprisonment, fine, and term of supervised release,” any “mandatory minimum
penalty,” the court’s “authority to order restitution,” and “the terms of any plea-
agreement provision waiving the right to appeal or to collaterally attack the
sentence.” Fed. R. Crim. P. 11(b)(1)(G),(H),(I),(N).
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plea agreement), and United States v. Salas-Garcia, 698 F.3d 1242, 1254 (10th
Cir. 2012) (noting that the plea agreement and district court explained the
immigration consequences of a guilty plea), with, e.g., United States v. Smith, 500
F.3d 1206, 1210–12 (10th Cir. 2007) (focusing solely on whether the court
explained that the defendant was waiving her right to appeal and to collaterally
attack her conviction), and United States v. Chavez-Salais, 337 F.3d 1170, 1173
(10th Cir. 2003) (inquiring only whether district court informed the defendant he
was waiving his right to make a later motion under 18 U.S.C. § 3582(c)).
Adding to the uncertainty, in United States v. Mitchell, 633 F.3d 997, 1001
(10th Cir. 2011), albeit in a different context, we held that “[i]f a guilty plea is
not knowing and voluntary, it is void, and any additional waivers in the plea
agreement generally are unenforceable.” As a result, in that case we looked to the
voluntariness of the plea to conclude that the defendant’s waiver of the
protections of Federal Rule of Evidence 410 was knowing and voluntary. See id.
at 1002 (“The entirety of the record bears out the district court’s conclusion [that
Mitchell’s plea was knowing and voluntary] . . . . The plea agreement therefore is
enforceable.”). Similarly, in United States v. Vidal, 561 F.3d 1113, 1118 (10th
Cir. 2009), we reviewed the voluntariness of the defendant’s plea, despite an
appellate waiver. See Vidal, 561 F.3d at 1118 (noting that “[w]e need not decide
[whether ambiguity in the Rule 11 colloquy precluded] a knowing and intelligent
waiver of the defendant’s right to appeal because we conclude on the merits that
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her guilty plea was knowing and intelligent.”) 3; see also United States v. Byrum,
567 F.3d 1255, 1258 n.2 (10th Cir. 2009) (stating that although the defendant
waived his right to appeal or collaterally challenge his conviction and sentence,
“[t]o the extent Byrum challenges the district court’s denial of his attempt to
withdraw his guilty plea under Rule 11 (and hence the condition precedent to the
court’s acceptance of the plea agreement), or whether his plea was knowing and
voluntary, our review is not precluded” and further stating that the defendant
“cannot succeed on his merits argument even assuming it was not waived”).
The ambiguity in our cases is whether an appellate waiver contained in a
plea agreement can be knowing and voluntary if the plea in the plea agreement
was not also knowing and voluntary. As a result, we must decide whether, in
applying the second step of the Hahn inquiry, we should consider whether a
defendant’s entire plea agreement was knowing and voluntary—not merely
whether the defendant understood the particular rights he was giving up when he
entered into the plea agreement.
3
In Hahn, we stated that we would not consider the merits of an appeal in
determining whether to enforce an appellate waiver. See Hahn, 359 F.3d at 1328
(“The parties will not be directed to brief the underlying merits of the defendant’s
appeal. If the panel finds that the plea agreement is enforceable, it will
summarily dismiss the appeal. If the panel finds the plea agreement
unenforceable, it will issue a ruling consistent with this finding.”). Here, unlike
in Hahn, the merits of the appeal concern the voluntary nature of the plea as it
relates to the knowing and voluntary nature of the plea agreement. Hahn’s
directive not to consider the merits of the appeal, therefore, does not apply to
appeals alleging that the plea agreement was not knowing and voluntary. See
Vidal, 561 F.3d at 1118.
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We conclude it is appropriate to consider the knowing and voluntary nature
of the entirety of the plea agreement to satisfy this inquiry. In other words, if the
defendant did not voluntarily enter into the agreement, the appellate waiver
subsumed in the agreement also cannot stand. This follows from the logic of
Hahn. Our holding is premised on the understanding that “contract principles
govern plea agreements.” Hahn, 359 F.3d at 1324–25. In Hahn, we borrowed
this understanding from an Eighth Circuit case, United States v. Andis, 333 F.3d
886 (8th Cir. 2003), whose approach to enforcing appellate waivers we adopted
with “slight variation.” Hahn, 359 F.3d at 1325. In Andis the court explained the
“requirement that a plea agreement and waiver be entered into knowingly and
voluntarily applies to each term of an agreement.” Andis, 333 F.3d at 890
(emphasis added). 4 Thus, for example, “an agreement, or aspects of an
agreement” would not be entered into with the requisite knowledge or
voluntariness if it resulted from such influences as undue coercion or ineffective
assistance of counsel. Id.
As a matter of logic and practicality, then, we must examine the totality of
the plea agreement—both the appellate waiver and the plea provisions—in
4
The government has not argued here that the provisions in the agreement
are severable, and, even if it had, this argument would fail because the plea
agreement on its face is completely integrated. See App. 132 (“This document
contains the entire plea agreement between defendant, Terry Jo Rollings, and the
United States through its undersigned attorney. No other agreement or promise
exists, nor may any additional agreement be entered into unless in writing and
signed by all parties.”).
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determining whether the plea agreement was knowing and voluntary. 5 With
regard to the plea, we must therefore ascertain at a minimum whether the
defendant had notice of the nature of the charges against him and the possible
penalties the charges carry. See United States v. Gigot, 147 F.3d 1193, 1199
(10th Cir. 1998) (holding that a plea was not knowing and intelligent “choice
between available alternatives” where the defendant was not properly informed
about the charged crimes and penalties).
Other circuits apply a similar framework. See, e.g., United States v. Ortiz-
Garcia, 665 F.3d 279, 284–85 (1st Cir. 2011) (finding an appellate waiver not
knowing and voluntary because neither the plea agreement nor the Rule 11
colloquy informed the defendant of the maximum possible penalty for the offense
to which the defendant pleaded guilty); United States v. Cervantes, 420 F.3d 792,
794 (8th Cir. 2005) (confirming that the plea agreement advised the defendant of
the “nature and range of her possible sentence” and that the defendant had
reviewed the provisions of the plea agreement with her attorney before finding
that the appeal waiver in the plea agreement was knowing and voluntary); United
States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) (noting that the
defendant’s challenge to Rule 11 colloquy “goes to the heart of whether his guilty
plea, including the waiver of appeal, is enforceable. Thus, we must determine
5
Where only the appellate waiver provision is challenged, as in most
cases, we are not obligated to consider whether the plea in the plea agreement is
valid.
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whether the plea was valid in order to determine if appeal is permitted.”); United
States v. Rosa, 123 F.3d 94, 100 (2d Cir. 1997) (“A second disturbing
characteristic of this waiver provision relates to the well-established principle that
all plea bargains must be made knowingly and voluntarily. It has been recognized
that even under a standard plea agreement a court must carefully scrutinize the
plea proceeding and search for a clear demonstration of the extent of the
defendant’s knowledge and the voluntary nature of the plea.” (citing United States
v. Ready, 82 F.3d 551, 556 (2d Cir. 1996))); United States v. Wenger, 58 F.3d
280, 282 (7th Cir. 1995) (“Waivers of appeal must stand or fall with the
agreements of which they are a part. If the agreement is voluntary, and taken in
compliance with Rule 11, then the waiver of appeal must be honored. If the
agreement is involuntary or otherwise unenforceable, then the defendant is
entitled to appeal.”).
One objection the government makes is that this approach implicitly
expands Hahn and undercuts the benefit of the bargain—avoiding appeals that the
defendant has relinquished. We disagree. Under Hahn we already undertake a
searching review of the plea agreement and Rule 11 colloquy in determining
whether the appellate waiver was knowing and voluntary. This review ordinarily
requires us to decide if the record discloses whether the plea in the plea
agreement was also entered into knowingly and voluntarily. In most cases this
inquiry poses no problem. The defendant is represented by counsel, and the court
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confirms the defendant’s admission of guilt in open court, explaining the nature
of the charges, the terms of the plea agreement, and the potential punishment.
In sum, in considering whether an appellate waiver is knowing and
voluntary, we consider whether the defendant entered into the plea agreement
knowingly and voluntarily. Where a plea agreement contains a plea and an
appellate waiver, we may therefore look to whether the plea was knowing and
voluntary in deciding whether the plea agreement was entered knowingly and
voluntarily.
B. Rollings’s Plea Agreement
Rollings argues that his guilty plea was not knowing and voluntary for two
reasons arising from the Rule 11 colloquy: (1) the district court’s failure to advise
him of the court’s authority to order restitution 6; and (2) the district court’s
failure to ensure he understood the elements of the charged offense—that he must
possess the stolen goods while knowing them to be stolen.
Whether a guilty plea was entered knowingly and voluntarily is generally a
question of law we review de novo. See Vidal, 561 F.3d at 1118. If defense
counsel did not object to the validity of the plea, we review solely for plain error.
See id. at 1118–19. Plain error exists if there is “(1) an error; (2) that is plain; (3)
6
At oral argument, Rollings stated that this was “not now his main
argument,” although he acknowledges he had made it below. Because in our view
Rollings did not go so far as to abandon this line of argument, we therefore
consider it on the merits.
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which affects the government’s substantial rights; and (4) which seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1119
(citations and internal quotation marks omitted). Because Rollings’s counsel did
not object to the validity of his plea, we review his claim for plain error.
(1) Restitution
The government does not dispute that the district court failed to state that it
had the power to order restitution in violation of Federal Rule of Criminal
Procedure 11(b)(1)(K). 7 But to establish that the error affected substantial rights,
the defendant “must show a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004). If a defendant “receives the information omitted by the district
court from other sources,” he “generally cannot demonstrate that he would not
have pleaded guilty had the court also so informed him.” United States v. Ferrel,
603 F.3d 758, 763 (10th Cir. 2010).
Rollings argues that he was not apprised of the court’s power to order
restitution and the amount of restitution, which in this case was substantial
because of related conduct by his co-defendant. Although unknown at the time of
the plea colloquy, after the presentence investigation, the district court ordered
him to pay almost $500,000 in restitution based on all of the conduct associated
7
Rule 11(b)(1)(K) requires the court to advise the defendant of the court’s
“authority to order restitution” before the court accepts a plea of guilty.
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with the crime and the crimes of a co-defendant. 8 The loss attributable to
Rollings’s theft of the cargo trailer was $45,000.
To support his argument, Rollings relies on our holding in United States v.
Pogue, 865 F.2d 226 (10th Cir. 1989). In Pogue, we held that a defendant was
prejudiced by the district court’s failure to inform him of the possibility of
restitution and that he was later ordered to pay $1.7 million even though he had
notice of only a possible $2,000 fine. But Pogue is distinguishable. The
defendant in Pogue had no prior knowledge of the district court’s power to order
restitution. See Pogue, 865 F.2d at 228 (“Both the record of defendant’s plea
hearing and his written statement in advance of plea corroborate defendant’s
claim that he was not informed by the district court of the possibility of
restitution prior to entering his plea.”). Here, in contrast, Rollings’s plea
agreement clearly informed him that the court would order restitution. The plea
agreement, signed two days prior to the Rule 11 colloquy, contained an entire
paragraph alerting Rollings to the district court’s duty, not merely its power, to
order restitution. 9 In addition, the plea petition Rollings signed stated that the
8
Rollings’s restitution obligation was joint and several with a co-
defendant.
9
The plea agreement states, “[T]he Court must order the payment of
restitution to the victim(s) of the offense. Pursuant to 18 U.S.C. §§ 3663(a)(3)
and 3663A, the parties further agree that, as part of the sentence resulting from
the defendant’s plea, the Court will enter an order of restitution to all victims of
the defendant’s relevant conduct as determined by reference to the United States
(continued...)
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district court could require restitution. 10 Considering, as we must, the
“synergistic effect” of the plea agreement and colloquy, Tanner, 721 F.3d at
1234, we conclude that Rollings had adequate notice of the district court’s power
to order restitution.
Furthermore, Rollings also specifically agreed in the plea agreement that
the restitution order would encompass not only the victims of the offense to
which he was pleading guilty, but “all victims of the defendant’s relevant conduct
as determined by reference to the United States Sentencing Guidelines.” App.
133–34. And Rollings was not required to know with specificity the exact
amount of restitution that would be ordered before he forfeited his appellate
rights. See United States v. Ruiz, 536 U.S. 622, 629 (2002) (“[T]he law ordinarily
considers a waiver knowing, intelligent, and sufficiently aware if the defendant
fully understands the nature of the right and how it would likely apply in general
in the circumstances—even though the defendant may not know the specific
detailed consequences of invoking it.”).
9
(...continued)
Sentencing Guidelines.” App. 133–34 (emphasis added).
10
Paragraph 20 of the plea petition states in relevant part, “If you plead
GUILTY, the judge may require you to make restitution to any victim of the
offense [18 U.S.C. §§ 3663(a)(3) and 3664]” and notes that for certain offenses
occurring on or after April 24, 1996, “ordinarily the judge is required to order you
to pay restitution to any victim of the offense [18 U.S.C. § 3663A].” App. 146.
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As a result, Rollings was aware of both the court’s power to order
restitution and the possible restitution he could be required to pay. Thus,
Rollings has not satisfied his burden of showing the district court’s failure to
adequately inform him of its power to order restitution affected his substantial
rights or is a miscarriage of justice. See Ferrel, 603 F.3d at 764.
2. Elements of the Charges
Rollings also asserts that the prosecutor never confirmed during the Rule 11
colloquy whether he possessed stolen goods while knowing them to be stolen, as
required by 18 U.S.C. § 659.
During the colloquy, the prosecutor questioned Rollings on whether he
knew the goods were stolen while in his possession:
Q: Okay. So you had this stuff and you knew the items
in that, including the trailer itself, were stolen; is that
right?
A: Yes.
Q: Okay so you had this. How did you know it was
stolen? Mr. Hayes said, I stole this and - I stole this?
We got it from a certain area?
A: I didn’t pay no money for it. He did tell me
eventually it was stolen.
Q: Okay. But from your past experience you knew it
was stolen; is that correct? He just gave you this trailer,
is that correct, with the merchandise - with the storm
windows and the doors; is that right?
A: Yes.
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Q: Okay. So you knew it was stolen. And it looked
like it had a lot of stuff in it; is that right?
A: Yes.
App. 223.
Thus, Rollings admits he became aware the trailer was stolen. He also
conceded the trailer was found on his property, showing he retained possession of
the trailer for at least some time after he found out it was stolen. This was
sufficient to prove a violation of § 659. United States v. Koran, 453 F.2d 144,
146 (10th Cir. 1972) (violation of § 659 can be proven by showing defendant
retained possession of the goods after becoming aware the goods were stolen).
But even assuming this exchange is not enough, any error in the colloquy
did not affect his substantial rights because Rollings was informed prior to the
plea colloquy of the intent element. See Ferrel, 603 F.3d at 763. Before the plea
hearing, Rollings received a copy of the Third Superseding Indictment, which
stated the required mens rea. See App. 117 (charging Rollings with intent to
convert to his own use chattels moving in interstate commerce “knowing the said
goods and chattels to be stolen”). That Rollings was provided with a copy of his
indictment “give[s] rise to a presumption that the defendant was informed of the
nature of the charge against him.” United States v. Weeks, 653 F.3d 1188, 1199
(10th Cir. 2011) (citation and internal quotation marks omitted). In addition, at
the plea hearing Rollings confirmed—reviewing the documents with the
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prosecutor—that he had read and understood the plea petition and plea agreement
and had reviewed both with his attorney. These facts convince us that Rollings
had adequate notice of the elements of the charges against him. See Weeks, 653
F.3d at 1199 (finding relevant that the defendant had read and understood both the
indictment and the plea agreement containing the charges against him).
As a final argument, Rollings contends the indictment’s description of the
elements of the charge was confusing and that his answers during the colloquy
cannot establish that Rollings received “‘real notice of the true nature of the
charge against him.’” Aplt. Br. at 45 (quoting Henderson v. Morgan, 426 U.S.
637, 645 (1976)). But in Henderson, the defendant was never formally charged
with the offense to which he pleaded guilty, and never at any point received
notice of the required intent element from an indictment or through his attorneys.
See id. at 642–43, 46–47; see also Gigot, 147 F.3d at 1198 (finding plea
involuntary where the defendant was “never informed by the indictment or
otherwise of the elements of the offenses to which she pled guilty”). Here, in
contrast, Rollings was formally charged with the crime, had notice of the
elements of the offense from the indictment and plea agreement, and stated that
he understood the charges and that he had reviewed his plea petition and plea
agreement with his attorney. 11
11
Rollings also argues that he did not have true notice of the elements
because the indictment “confusingly includes two different mens rea elements
(continued...)
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Accordingly, any ambiguity regarding Rollings’s understanding of the
charges during the plea colloquy does not constitute plain error.
III. Conclusion
Rollings cannot demonstrate that his appellate waiver was not knowing and
voluntary. We therefore GRANT the government’s motion to enforce the waiver
and dismiss the appeal. We also GRANT the government’s motion to supplement
the record and deny as moot Rollings