United States v. Rodrigo Christopher Allicock

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 15, 2007
No. 06-14627 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60096-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODRIGO CHRISTOPHER ALLICOCK,
a.k.a. Martin Pitts,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 15, 2007)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Rodrigo Allicock appeals both his conviction and his 180-month sentence
for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e). Allicock pleaded guilty pursuant to a plea agreement. That agreement
contained a provision in which Allicock waived his right to appeal any sentence
imposed by the district court. On appeal he contends that: (1) his guilty plea is
invalid because the district court did not specifically inform him of his right to
persist in his not guilty plea; (2) the sentence waiver in his plea agreement is
invalid because it was not entered into knowingly and voluntarily; (3) his sentence
enhancements under 18 U.S.C. § 924(e) were improper because the presentence
investigation report incorrectly classified some of his prior convictions as violent
felonies; and (4) the district court violated the Fifth and Sixth Amendments by
sentencing him in excess of the statutory maximums for the indicted offense.
Because Allicock’s contentions lack merit, we affirm his conviction and his
sentence.
On March 30, 2006, Allicock was charged for being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (Count I) and for making
a false statement to a licensed firearms dealer, in violation of 18 U.S.C. §§
922(a)(6), 924(a)(1)(B), (a)(2) (Count II). The indictment arose from Allicock’s
January 2006 purchase of three firearms at a gun show in Fort Lauderdale.
Realizing that his convicted felon status would prevent him from purchasing
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firearms in his own name, Allicock persuaded Sonia McEwan, his aunt, to
complete the necessary paperwork in his stead. Aunt Sonia complied by filling out
ATF Form 4473, listing herself as the firearms purchaser, but Allicock provided
the money for the firearms. The transaction was not completed on the day of the
gun show. It was completed three days later when Allicock picked up the firearms
from a firearms store in Pompano Beach, Florida.
Unfortunately for Allicock, ATF agents interviewed his Aunt Sonia on the
same day he picked up the firearms. She admitted that she had helped him acquire
the firearms. Shortly after Aunt Sonia’s admission, Allicock was arrested. The
government then obtained the two-count indictment against him.
Allicock initially pleaded not guilty, but changed his plea after reaching an
agreement with the government. In exchange for his plea, the government agreed
to drop the second count in the indictment. The plea agreement advised Allicock
that if he pleaded guilty, which he did, he would face a minimum mandatory prison
sentence of fifteen years and a maximum prison sentence of life. His plea
agreement also contained a sentence-appeal waiver. The waiver stipulated that
Allicock could appeal his sentence in two circumstances: (1) if his sentence
exceeded the maximum sentence permitted by statute and/or was the result of an
upward departure from the guideline range; or (2) if the government appealed his
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sentence.
Allicock now contends that his guilty plea did not meet the requirements of
due process or of Rule 11 of the Federal Rules of Criminal Procedure, because the
district court did not inform him of his right to persist in a not guilty plea. Since
Allicock failed to raise any Rule 11 violations before the district court, our review
is for plain error. See United States v. James, 210 F.3d 1342, 1343 (11th Cir.
2000). A plain error is an error that “is clear or obvious and affects substantial
rights.” United States v. Hernandez-Fraire, 208 F.3d 945, 951 (11th Cir. 2000).
Rule 11(b) governs the acceptance of guilty pleas. It places upon a district
court the “obligation and responsibility” to inquire into whether a defendant
entered his plea knowingly and voluntarily. Id. As part of that inquiry the Rule
enumerates several requirements the district court must satisfy before accepting a
guilty plea, including the requirement to inform the defendant of “the right to
plead not guilty, or having already so pleaded, to persist in that plea.” Fed. R.
Crim. P. 11(b)(1)(B). However, the district court is not required to quote verbatim
from Rule 11, and any variance from the Rule’s requirements constitutes harmless
error if it does not affect the defendant’s substantial rights. See Fed. R. Crim. P.
11(h).
Although a rote recitation of the rule is not required, a district court does
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commit plain error if it fails to address the three core concerns that underpin Rule
11: (1) that the defendant’s guilty plea did not result from coercion; (2) that the
defendant appreciates the nature of the charges against him; and (3) that the
defendant understands the consequences of a guilty plea. Hernandez-Fraire, 208
F.3d at 949. The Supreme Court has held that a defendant who seeks reversal of
his conviction after a guilty plea on the ground that the district court committed
plain error under Rule 11 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, 124 S. Ct. 2333, 2340 (2004). “A defendant must thus satisfy the judgment
of the reviewing court, informed by the entire record, that the probability of a
different result is ‘sufficient to undermine confidence in the outcome’ of the
proceeding.” Id. (citation omitted).
Allicock bases his contention on this Court’s holding in Hernandez-Fraire
that a district court’s failure to ensure that the defendant understood his rights
before accepting a plea was plain error. 208 F.3d at 951–52. During the
sentencing colloquy the defendant in Hernandez-Fraire stated that he understood
neither the nature of the proceedings nor the rights he was waiving by agreeing to
plead guilty. Id. at 948. We vacated the defendant’s guilty plea because “the
district court failed to inform him of his right to plead not guilty, his right to the
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assistance of counsel at trial, his right to confront and cross-examine adverse
witnesses at trial, and his right against compelled self-incrimination.” Id. at 946.
We further noted that “the district court’s failures to inform strike at the heart of
what Rule 11 was designed to prevent—the unknowing and unintelligent waiver of
constitutional rights.” Id. at 951. However, in United States v. Moriarty, 429 F.3d
1012, 1020 n.5 (11th Cir. 2005), we noted that Hernandez-Fraire addressed a
specific set of narrow facts involving a defendant who had informed the court that
he did not understand the proceeding or his rights and a court that accepted the
defendant’s plea anyway and, in the process, exhibited an “almost total failure” to
address the core concerns of Rule 11.
Here, Allicock has offered no evidence to show that the district court’s plea
colloquy failed to address the three core concerns of Rule 11 or that he would not
have pleaded guilty but for the district court’s failure to advise him of his right to
persist in his not guilty plea. During his plea colloquy Allicock’s attorney
informed the district court that he had “explained the repercussions of the plea
agreement with [Allicock] on numerous occasions . . . .” The district court judge
advised Allicock that entering a guilty plea would cause him to forfeit his right to a
jury trial, his right to be represented by an attorney at trial, his right to call
witnesses on his behalf, his right to cross-examine the government’s witnesses, his
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right to testify, and his right to compel the government to establish his guilt beyond
a reasonable doubt. When asked whether he understood that he was waiving those
rights, Allicock responded that he did. When asked whether he had received any
promises from government other than those contained in the plea agreement,
Allicock replied that he had not. And unlike the defendant in Hernandez-Fraire,
none of Allicock’s statements suggested that he did not understand the purpose of
the plea hearing or the ramifications of a guilty plea. Therefore, Allicock has not
established that the plea colloquy failed to adequately address the three core
concerns of Rule 11 or that he would not have pleaded guilty if he had been more
specifically informed of his right to persist in his not guilty plea. See Dominguez
Benitez, 542 U.S. at 83, 124 S. Ct. at 2340.
Allicock’s second contention is that he did not knowingly and voluntarily
waive his right to appeal his sentence. The voluntariness of an appeal waiver is a
legal issue reviewed de novo. United States v. Pease, 240 F.3d 938, 942 (11th Cir.
2001). “An appeal waiver is valid if a defendant enters into it knowingly and
voluntarily. We have consistently enforced knowing and voluntary appeal waivers
according to their terms.” United States v. Bascomb, 451 F.3d 1292, 1294 (11th
Cir. 2006) (citation omitted). We interpret the terms in a plea agreement based on
the parties’ intent at the time they entered the agreement. United States v. Rubbo,
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396 F.3d 1330, 1334 (11th Cir.), cert. denied, 126 S. Ct. 416 (2005).
Paragraph eleven of Allicock’s plea agreement states that “the defendant
hereby waives all rights conferred by Title 18, United States Code, Section 3742 to
appeal any sentence imposed, . . . unless the sentence exceeds the maximum
permitted by statute and/or is the result of an upward departure from the guideline
range the court establishes at sentencing.” Allicock acknowledges that this Court
generally enforces appeal waivers, but nonetheless maintains that his waiver
should not be enforced. He argues that his “lay understanding” of the law
prevented him from realizing that the 15-year mandatory minimum term of
imprisonment set forth in 18 U.S.C. § 924(e) was not an appealable sentencing
departure, and therefore, his appeal waiver was not truly knowing and voluntary.
The record does not support Allicock’s argument.
During the plea colloquy the district court repeated the language of the
appeal waiver, advising Allicock that “you are waiving your right to appeal unless
the sentence exceeds the statutory maximum or is the result of an upward departure
from the Guideline range established at the time of sentencing.” The district court
also told Allicock that he would be sentenced to a minimum of 15-years
imprisonment. In addition, the plea agreement itself stated that Allicock was
facing a statutory minimum sentence of 15-years imprisonment. Further,
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Allicock’s attorney told the district court that he had discussed the ramifications of
the plea agreement with Allicock “on numerous occasions.” All of the evidence in
the record indicates that Allicock understood the plea agreement, including the
appeal waiver. In return for what he voluntarily gave up in the bargain, Allicock
received the benefit of the government dropping one of the two counts against him.
Because the appeal waiver is enforceable, we need not consider the merits of the
other two issues Allicock raises on appeal.
AFFIRMED.
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