United States v. Kent Dewater

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2007
No. 06-14385 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00091-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENT DEWATER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 20, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Kent Dewater appeals his conviction for drug and firearm related offenses,
arguing that his plea was not given freely and voluntarily due to misrepresentations
by his defense counsel.
II.
Dewater and his wife were indicted for conspiracy to possess with intent to
distribute methamphetamine and possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841 (Counts 1 and 2);
using and carrying a firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count 3); and maintaining a place for the purpose
of manufacturing or distributing a controlled substance, in violation of 21 U.S.C.
§ 856 (Count 4). Dewater agreed to plead guilty to all four counts pursuant to a
written plea agreement. The plea agreement did not identify the amount of drugs
for which Dewater would be responsible, but it explained that his sentence could
not be predicted and that the court was not bound by any recommendations. It
further explained that the court could consider other facts and events when
imposing sentence and that imposition of a sentence greater than anticipated was
not grounds for withdrawal of his plea.
In connection with his plea agreement, Dewater had signed a factual
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summary detailing his offenses. The factual summary explained that a confidential
informant had engaged in controlled buys of methamphetamine from Dewater, and,
as a result, police obtained a search warrant for Dewater’s home. The police
search of Dewater’s home uncovered methamphetamine in the house and in the car
and at least 18 firearms. The factual summary also explained that Dewater had
admitted receiving methamphetamine from a source for the past six years and
selling the methamphetamine to at least seven individuals.
At the change of plea hearing, Dewater acknowledged that he had reviewed
with counsel and signed the factual summary and plea agreement. With regard to
his plea agreement, he also indicated that there were no other promises made, that
he had not been threatened or coerced into pleading guilty, and that he was
satisfied with his counsel. The district court found that Dewater’s plea was given
freely and voluntarily and accepted the plea.
After the district court adjudicated Dewater guilty, defense counsel moved
for a psychiatric evaluation to determine his competency. The court granted the
motion, and the evaluation determined that Dewater was able to understand the
proceedings and contribute to his defense. At a hearing, the court found Dewater
competent. Dewater then indicated to the court that he was dissatisfied with
counsel and that he felt that counsel had forced him to plead guilty. Dewater also
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argued that he was not guilty of the weapons charge (Count 3) because the firearms
were used for hunting and as collector’s items. Counsel for Dewater informed the
court that there had been a breakdown in communication and that appointing new
counsel may be appropriate. The government noted that defense counsel had been
very thorough in explaining the plea agreement to Dewater and that there was no
indication of any promises of threats. The district court removed defense counsel
and appointed new counsel.
The probation officer prepared a presentencing investigation report (“PSI”),
concluding that the total amount of drugs Dewater had been involved with was
estimated to be 2,041.2 grams, even though during the search police uncovered
only about 24 grams in the house and car. Based on this amount of
methamphetamine, the PSI listed the base offense level as 34 under U.S.S.G. §
2D1.1. Dewater then objected to the amount of drugs. According to the addendum
to the PSI, Dewater’s attorney did not deny the factual basis for the probation
officer’s calculation regarding the total amount of drugs in the PSI, but, rather,
argued that the United States Attorney’s Office had agreed that Dewater would
only be held accountable for the methamphetamine purchased during the controlled
buy and found in his home during the search. If this amount had been used in the
PSI, the base offense level would have been 20. In response, the probation officer
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indicated that the government had not agreed to a specific weight. Rather, the
probation officer noted that the government had agreed only that it would not
charge Dewater with a specific amount in order to avoid any mandatory minimum
term of imprisonment.
At sentencing, the court overruled Dewater’s objections to the PSI. Dewater
again indicated that he had been misled by defense counsel about the possible
sentence given the quantity of drugs for which he was held responsible. His
counsel, however, told the court that Dewater wanted to “get this over” and, as
such, he did not want to file a motion to withdraw the plea. Rather, Dewater
wanted to leave the plea as stated and go forward. The court sentenced Dewater to
168 months imprisonment, which consisted of 108 months on Counts 1, 2, and 4,
to be served concurrently, and a consecutive 60-month term of imprisonment on
Count 3.
III.
Dewater argues on appeal that the district court plainly erred by accepting
his plea agreement because the plea was the result of misinformation by defense
counsel, which resulted in inaccurate information about the consequences of the
plea. According to Dewater, the parties agreed that he would not be held
responsible for the total amount of drugs with which he was involved and that this
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understanding, as represented by counsel, led him to enter the plea.
“[I]t is a cardinal rule of appellate review that a party may not challenge as
error a ruling or other trial proceeding invited by that party. The doctrine of
invited error is implicated when a party induces or invites the district court into
making an error. Where invited error exists, it precludes a court from invoking the
plain error rule and reversing.” United States v. Love, 449 F.3d 1154, 1157 (11th
Cir. 2006); United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005).
Here, Dewater informed the district court at the change of plea hearing that
he was satisfied with counsel and that he had reviewed with counsel and signed the
plea agreement and factual statement of his guilt. Even after the appointment of
new counsel, who raised the question of whether there had been any
misrepresentation, Dewater chose not to withdraw his plea. Therefore, Dewater
invited the alleged error and he may not challenge it on appeal.
Even if Dewater had not invited the alleged error, his appeal would still fail.
When a defendant fails to assert a Federal Rule of Criminal Procedure 11 (“Rule
11”) violation in the district court, we review for plain error. United States v.
Quinones, 97 F.3d 473, 475 (11th Cir. 1996). To establish plain error, Dewater
must show “that there was error, that the error was plain, and that it affected his
substantial rights, i.e., the error affected the outcome of the district court
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proceeding.” United States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994). Once the
appellant proves these three elements, this court may correct the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. In evaluating whether there was any effect on the defendant’s
substantial rights, we may consider the record as a whole. United States v.
Monroe, 353 F.3d 1346, 1350 (11th Cir. 2003) (quoting United States v. Vonn,
535 U.S. 55, 59, 122 S. Ct. 1043, 1046, 152 L. Ed. 2d 90 (2002)).
Under Rule 11, the district court must address three core principles before
accepting a guilty plea: “(1) the guilty plea must be free from coercion; (2) the
defendant must understand the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” United States v. Jones,
143 F.3d 1417, 1418-1419 (11th Cir. 1998). Here, during the plea colloquy, the
court explained the consequences of the plea. Dewater confirmed that he had not
received any promises in return for pleading guilty and that he had not been
coerced into entering the plea. Furthermore, the plea agreement itself specifically
stated that the possible sentences would be determined by the court and could not
be predicted. In light of these facts, Dewater cannot show any error in the district
court’s acceptance of his plea.
Accordingly, we AFFIRM.
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