United States v. Daniel Murraye

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL ANTONIO MURRAYE, a/k/a D,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-02026-GRA-6)
Argued: December 11, 2014 Decided: February 3, 2015
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Motion to dismiss denied; judgment affirmed by unpublished per
curiam opinion.
ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant. Elizabeth Jean Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee. ON BRIEF: Eugene V. Gorokhov, Ziran Zhang, BURNHAM &
GOROKHOV PLLC, Washington, D.C., for Appellant. William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Daniel Antonio Murraye (“Appellant”) agreed to plead
guilty to conspiracy to distribute crack cocaine. After signing
a plea agreement and executing a petition outlining his rights
pursuant to Rule 11 of the Federal Rules of Criminal Procedure,
Appellant appeared for his plea hearing. At that hearing, the
district court failed to address Appellant individually in open
court regarding, inter alia, the voluntariness of Appellant’s
plea, the nature of his charge, and his potential sentence. The
court likewise failed to ensure that a sufficient factual basis
existed for the plea. These failures, which contravene the
plain language of Rule 11, constitute plain error. However,
although the error was plain, Appellant is unable to carry his
burden of showing the error affected his substantial rights;
i.e., he has not shown a reasonable probability that but for the
errors, he would not have pled guilty. Therefore, we are
constrained to affirm the district court.
I.
Appellant began using drugs at age 11 and left home at
age 15. He attended school until ninth grade, was enrolled in
special education classes, and has received no other formal
education.
On August 9, 2011, a District of South Carolina grand
jury returned an indictment charging Appellant with one count of
3
conspiracy to distribute at least 280 grams of crack cocaine,
and six counts of distributing crack cocaine. On December 19,
2011, the Government filed a plea agreement in which Appellant
agreed to plead guilty only to the conspiracy charge. The
agreement did not contain a statement of facts.
On December 20, 2011, Appellant appeared for his plea
hearing and filed a Petition to Enter Plea of Guilty (the
“Petition”), which is a pre-printed form listing questions
typically asked at a plea hearing. According to the parties,
the Petition is routinely utilized in this district court. Five
other defendants also entered guilty pleas in the same
proceeding. Only one of these other defendants was a purported
co-conspirator of Appellant, however. Of the remaining four,
three were pleading guilty to participating in an oxycodone
conspiracy, and one was pleading guilty to unarmed bank robbery.
Neither the oxycodone conspiracy nor the bank robbery had any
relationship to Appellant’s guilty plea. The propriety of that
plea hearing is at issue in this appeal. The details of the
hearing are discussed more fully, infra.
Appellant was adjudged guilty at the plea hearing, and
on March 19, 2012, the district court sentenced him to 120
months in prison, the mandatory minimum sentence.
On March 18, 2013, Appellant filed a motion to vacate
his sentence pursuant to 28 U.S.C. § 2255. He contended that
4
his attorney was ineffective for failing to file a notice of
appeal at Appellant’s request. The district court granted the
motion and allowed Appellant 14 days to file a timely notice of
appeal. Appellant did so. On appeal, he challenges the
propriety of the district court’s execution of the plea process.
On January 3, 2014, the Government filed a motion to dismiss the
appeal, arguing that Appellant’s plea agreement barred the
appeal. See Gov’t’s Mot. to Dismiss, ECF No. 20 (filed Jan. 3,
2014). That motion is still pending with this court and is also
addressed infra.
II.
Appellant did not object to the district court’s plea
colloquy below; therefore, we review his appellate claims for
plain error. See United States v. Olano, 507 U.S. 725, 731-32
(1993); United States v. Massenburg, 564 F.3d 337, 346 (4th Cir.
2009). We “accord deference to the trial court’s decision as to
how best to conduct the [Rule 11 plea] colloquy with the
defendant.” United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991); see also United States v. Wilson, 81 F.3d 1300, 1307
(4th Cir. 1996) (noting that this court “has repeatedly refused
to script the Rule 11 colloquy, relying rather on the experience
and wisdom of the district judges below”).
5
III.
Because it functions as a waiver of important
constitutional rights, a guilty plea must be entered
“voluntarily, knowingly, and intelligently, ‘with sufficient
awareness of the relevant circumstances and likely
consequences.’” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)). In
evaluating the validity of a guilty plea, we must “look to the
totality of the circumstances surrounding it, granting the
defendant’s solemn declaration of guilt a presumption of
truthfulness.” United States v. Moussaoui, 591 F.3d 263, 278
(4th Cir. 2010) (alteration and internal quotation marks
omitted).
A.
Rule 11 of the Federal Rules of Criminal Procedure
governs our analysis and provides, in pertinent part, that a
court “must address the defendant personally in open court” and
“must inform the defendant of, and determine that the defendant
understands” a litany of rights and waivers. Fed. R. Crim. P.
11(b)(1)(A)-(O) (emphases supplied). In addition, a court “must
address the defendant personally in open court and determine
that the plea is voluntary and did not result from force,
threats, or promises (other than promises in a plea agreement),”
and “[b]efore entering judgment on a guilty plea, the court must
6
determine that there is a factual basis for the plea.” Fed. R.
Crim. P. 11(b)(2)-(3) (emphases supplied); see also United
States v. Damon, 191 F.3d 561, 563 (4th Cir. 1999) (stating a
court must conduct a Rule 11 inquiry “before a guilty plea can
be accepted”).
Rule 11 has “two principal purposes. First, it
assists the district judge in making the constitutionally
required determination that a defendant’s guilty plea is truly
voluntary. Second, it produces a complete record at the time
the plea is entered of the factors relevant to this
voluntariness determination.” Damon, 191 F.3d at 564
(alteration, citation, and internal quotation marks omitted).
In 1966, Rule 11 was amended to make clear that the
court is “require[d] to address the defendant personally in the
course of determining that the plea is made voluntarily and with
understanding of the nature of the charge.” Fed. R. Crim. P. 11
advisory committee’s note on 1966 amendment. The revised rule
also “impose[d] a duty on the court in cases where the defendant
pleads guilty to satisfy itself that there is a factual basis
for the plea before entering judgment.” Id. Further,
[t]he court should satisfy itself, by
inquiry of the defendant or the attorney for
the government, or by examining the
presentence report, or otherwise, that the
conduct which the defendant admits
constitutes the offense charged in the
indictment or information or an offense
7
included therein to which the defendant has
pleaded guilty. Such inquiry should, e.g.,
protect a defendant who is in the position
of pleading voluntarily with an
understanding of the nature of the charge
but without realizing that his conduct does
not actually fall within the charge.
Id.
In 1983, the Rule was again amended to create a
harmless error standard for Rule 11 violations, rather than per
se reversal. See Fed. R. Crim. P. 11(h); United States v.
DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). We have explained,
“Under the [1983 amended] Rule 11 standard, . . . this Court may
vacate the conviction made pursuant to the plea only if the
trial court’s violations of Rule 11 affected the defendant’s
substantial rights.” DeFusco, 949 F.2d at 117.
B.
Appellant raises multiple arguments that the district
court plainly erred in the manner in which it conducted the plea
hearing. Appellant contends the district court “relied almost
entirely on the government’s recitation of what was written by
six defendants on a document they purportedly completed and
signed outside of court.” Appellant’s Br. 19. Specifically, he
claims the district court:
• failed to take into account or address
his limited education;
• failed to ask whether Appellant signed
the Petition;
8
• failed to address him individually
regarding waiver of his rights;
• failed to address him individually
regarding his potential sentence;
• failed to address him specifically
regarding waiver of his right to appeal
and collateral attack;
• failed to address him specifically
regarding the Government’s right to use
statements made under oath;
• failed to address him personally to
ensure the plea was not the result of
improper coercion;
• failed to ensure that he understood the
nature of the charge against him; and
• failed to establish a factual basis
before accepting the plea.
1.
To demonstrate error, “a defendant must show that ‘a
legal rule was violated during the district court proceedings.’”
United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008)
(quoting United States v. Olano, 507 U.S. 725, 733-34 (1993)).
a.
Here, the district court erred because it repeatedly
failed to follow the plain language of Rule 11.
Rule 11 explicitly requires that a court ensure “that
[a] plea is voluntary,” and “that the defendant understands
. . . the nature of each charge to which [he] is pleading.”
9
Fed. R. Crim. P. 11(b)(2), (b)(1)(G). We have explained that in
order to satisfy these requirements, “a trial court must take
into account both the complexity of the charge and the
sophistication of the defendant,” which may be inferred from
“personal characteristics, such as age, education, and
intelligence.” DeFusco, 949 F.2d at 117. But here, the
district court failed to personally address Appellant regarding
his educational background, age, and competency to enter a
guilty plea. The court did not even personally ensure in open
court that Appellant had actually signed the Petition, read the
plea agreement, or discussed either document with counsel.
Rule 11 also directs that, before accepting a guilty
plea, the district court “must address the defendant personally
and in open court and determine that the plea . . . did not
result from force, threats, or promises . . . .” Fed. R. Crim.
P. 11(b)(2) (emphasis supplied). The Petition sets forth three
questions in this regard; however, the court never addressed
this issue personally with Appellant in open court.
Next, the court is required to “inform the defendant
of, and determine that the defendant understands . . . the right
to plead not guilty[;] the right to a jury trial[;] the right to
be represented by counsel[;] the right at trial to confront and
cross-examine adverse witnesses [and] to be protected from
compelled self-incrimination[;] [and] the defendant’s waiver of
10
these trial rights if the court accepts a plea of guilty
. . . .” Fed. R. Crim. P. 11(b)(1)(B)-(F). The Government read
the questions set forth in Section B of the Petition, which
outlined the abovementioned rights, and simply stated as to each
question, “[e]ach defendant has answered yes [i.e., indicated
that he or she understood these rights].” J.A. 44-45. 1 However,
the court made no attempt to confirm that Appellant himself
understood the rights he was waiving.
Rule 11 also requires the district court to inform
Appellant of and ensure that he understands “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)(N). The Petition provides one question to this effect,
and the plea agreement itself delineates these rights. But the
court made no separate, individualized inquiry that Appellant
understood these rights, asking only, “[Y]a’ll have heard the
plea agreement. Is it stated properly?” J.A. 59. Appellant
and his purported co-conspirator replied, “Yes sir.” Id.
In addition, Rule 11 requires the district court to
determine that the defendant understands the Government’s right
“to use against the defendant any statement that the defendant
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
11
gives under oath” in a prosecution for perjury or false
statement. Fed. R. Crim. P. 11(b)(1)(A). But the district
court did not alert Appellant to these rights in the plea
hearing or via the Petition.
Rule 11 also requires the court to ensure that a
defendant understands the maximum and minimum penalties to which
he will be subject by pleading guilty. See Fed. R. Crim. P.
11(b)(1)(H)-(I). Although the Petition contains two blanks that
Appellant apparently filled in with these penalties, the
district court did not personally ensure that Appellant
understood them in open court.
b.
The district court also did not ensure that a factual
basis for the plea existed. See Fed. R. Crim. P. 11(b)(3)
(“Before entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.” (emphasis
supplied)). In determining whether a factual basis exists, a
court should determine whether the “evidence presented is
sufficient to demonstrate that the defendant committed the
elements of the charged offense.” United States v. Mitchell,
104 F.3d 649, 652 (4th Cir. 1997). The district court need not
rely on the Rule 11 plea colloquy to do so; “it may conclude
that a factual basis exists from anything that appears on the
12
record.” United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir.
2007) (internal quotation marks omitted).
In United States v. Mastrapa, this court vacated a
defendant’s guilty plea because Mastrapa did not admit the
necessary mens rea before entering the plea. 509 F.3d at 654-
55. This court first noted that in order to prosecute Mastrapa
for drug conspiracy, the Government had to prove that he had
“knowledge of th[e] conspiracy” and “knowingly and voluntarily
participated in the conspiracy.” Id. at 657 (emphases in
original). Thus, his mens rea “was an essential element to his
guilt.” Id.
In vacating the plea, we reasoned, “the district court
could not have found a factual basis in the record for
Mastrapa’s guilty plea in that the record failed to demonstrate
that Mastrapa had knowledge of the conspiracy and that he
knowingly and voluntarily participated in the conspiracy.”
Mastrapa, 509 F.3d at 660. The lower court relied on an
affidavit presented by a DEA agent that stated Mastrapa drove a
van to a hotel where a drug transaction occurred and helped
carry grocery bags (which were later found to contain drugs)
from the van to the hotel room. See id. at 656. But Mastrapa
consistently maintained that he did not know what was in the
grocery bags, and thus, he did not have the appropriate mens rea
to commit the conspiracy offense. See id. at 658. We concluded
13
that accepting a guilty plea from a defendant “who did not admit
to an essential element of guilt under the charge . . . would
surely cast doubt upon the integrity of our judicial process
. . . .” Id. at 661.
This court has held, however, that Rule 11 does not
require a district court to “establish through colloquy that a
factual basis exists for the plea.” DeFusco, 949 F.2d at 120
(emphasis supplied) (concluding that the factual basis was
supported where defendant provided the court with a signed
statement of facts and admitted on the record that the statement
was “an accurate representation of what happened”). Rather, the
court has “wide discretion” to conclude a factual basis exists
“from anything that appears on the record.” Id.
Appellant purported to plead guilty to Count One of
the indictment, conspiracy to distribute at least 280 grams of
crack cocaine. The indictment set forth the offense as follows:
[Appellant and others] knowingly and
intentionally did combine, conspire, agree
and have tacit understanding with each other
and with others, both known and unknown to
the grand jury, to knowingly, intentionally,
and unlawfully possess with intent to
distribute and distribute cocaine base
. . ., said conspiracy involving 280 grams
or more of “crack” cocaine . . . .
J.A. 11. The elements of a drug conspiracy are “(1) an
agreement between two or more persons to engage in conduct that
violates a federal drug law; (2) the defendant’s knowledge of
14
the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010).
The plea agreement did not contain a statement of
facts. But, the Government proffered the following information
about Appellant’s case at the plea hearing:
[T]he Greenville County Sheriff’s Office
requested assistance of the FBI in the
investigation of illegal drug and gang
activity in the Sterling and Judson
communities of Greenville. Several people
have pled guilty in front of your Honor,
including [two individuals]. They provided
information about illegal drug sales
including the involvement of both [alleged
co-conspirator] and [Appellant].
Officers made several controlled purchases
of crack cocaine from both of these
defendants. That along with historical
information provides . . . that [alleged co-
conspirator] and [Appellant] purchased and
sold crack cocaine to others in this
conspiracy, [and] that the drug weight
attributable to them is more than 280 grams
of crack cocaine.
J.A. 61-62. Following the Government’s proffer, the court
asked, “Is that correct?” to which Appellant replied, “Yes,
sir.” Id. at 62.
The only statement Appellant made about the offense
was the following: “I agreed to sell illegal drugs and I did
sell them crack cocaine.” J.A. 65. When asked about the
amount, Appellant said, “280 grams.” Id. at 66.
15
Appellant’s statement and the Government’s proffer do
not establish that Appellant knowingly and voluntarily
participated in the conspiracy. Appellant simply stated he
“agreed to sell illegal drugs,” and “did sell them crack
cocaine.” J.A. 65. But he did not explain who “them” is; with
whom he agreed to sell drugs; that he understood there was a
conspiracy; or that he agreed to be part of a conspiracy. The
Government’s proffer does not fill this gap, inasmuch as it
offers nothing more than that Appellant “purchased and sold
crack cocaine to others in this conspiracy.” Id. at 61-62. The
proffer readily describes drug distribution, but not knowing
participation in a conspiracy. As in Mastrapa, the district
court did not ensure, at the most basic level, that Appellant
possessed the appropriate mens rea, and the evidence on the
record falls painfully short of establishing Appellant
“knowingly and voluntarily participated in the conspiracy, [an]
essential element to his guilt.” Mastrapa, 509 F.3d at 660, 657
(emphasis in original).
The court also failed to ensure Appellant understood
“the true nature of the charge.” DeFusco, 949 F.2d at 117. To
the extent the Government stated Appellant was buying and
selling from others in the conspiracy, this conclusion was based
on “historical information” that was not explained to the
district court or Appellant at his plea hearing. J.A. 61. This
16
is insufficient to establish a factual basis. Rule 11 “mandates
that the factual basis be sufficiently specific to enable the
district court to compare the conduct admitted by the
defendant,” and proffered by the Government, “with the elements
of the offense charged.” United States v. Trejo, 610 F.3d 308,
313 (5th Cir. 2010) (emphasis supplied). Even though the
Government mentions others in the alleged conspiracy who had
pled guilty, apparently based on this “historical information,”
there is nothing in this record demonstrating how that
information implicated Appellant.
Furthermore, the Government’s proffer that “[o]fficers
made several controlled purchases of crack cocaine from both
these defendants,” J.A. 61-62, also does not support a factual
basis for conspiracy, as a defendant cannot legally conspire
with a government official. See United States v. Edmonds, 679
F.3d 169, 175 (4th Cir. 2012) (“The crime of conspiracy . . .
requires a genuine agreement between two or more persons to
commit a crime, and an agreement between a defendant and a
government agent, who does not agree to commit another crime but
is engaging the defendant only to establish evidence of a crime,
does not provide evidence of a genuine agreement.”), judgment
vacated on other grounds, 133 S. Ct. 376 (2012); United States
v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995) (“[A] defendant cannot
be convicted for conspiring with a government agent.”); Soto v.
17
United States, 37 F.3d 252, 256 (7th Cir. 1994) (per curiam)
(“[A] single defendant cannot ‘conspire’ with undercover
officers alone.”).
For all these reasons, the district court erred in its
commission of the Rule 11 hearing.
2.
These errors are plain because they were “‘obvious’
and ‘clear under current law.’” Benton, 523 F.3d at 433
(quoting Olano, 507 U.S. at 734). The court manifestly failed
to follow the requirements of Rule 11. See United States v.
Massenburg, 564 F.3d 337, 346 (4th Cir. 2009) (“[A] district
court’s failure to alert a criminal defendant to a potential
mandatory minimum sentence is a serious omission that strikes at
the core of Rule 11.”); Mastrapa, 509 F.3d at 660-61 (finding
plain error where the district court accepted a guilty plea
“from a defendant who did not admit to an essential element of
guilt under the charge”); United States v. Carter, 662 F.2d 274,
276 (4th Cir. 1981) (“A mere statement by the accused that he
understands the charge against him does not relieve the court of
the responsibility of further inquiry. The court must explain
the meaning of the charge and what basic acts must be proved to
establish guilt. . . . [T]he court must personally address the
defendant and ascertain the nature of his understanding.”
(citation omitted)); see also McCarthy v. United States, 394
18
U.S. 459, 464 (1969) (Rule 11 exists to ensure that “a defendant
who pleads guilty understands the nature of the charge against
him and whether he is aware of the consequences of his plea.”).
Moreover, even though we have held that in some
circumstances the use of a pre-written and pre-signed form like
the Petition does not necessarily contravene Rule 11, in those
cases the district courts also performed a personalized Rule 11
examination in open court. See, e.g., United States v.
Enamorado-Ramirez, 423 F. App’x 263, 264 (4th Cir. 2011) (per
curiam) (finding no plain error where defendant used a written
Rule 11 form, “communicated with the district court through an
interpreter[, and] assured the court that he understood the
nature of the proceedings, the rights he waived and the
penalties he faced, and was satisfied with his attorney’s
performance”); 2 see also United States v. Cotal–Crespo, 47 F.3d
2
Two other unpublished opinions from this court have
addressed plain error challenges to such plea hearing practices
but have rejected them on the third prong of the plain error
test. See United States v. DeYoung, 571 F. App’x 231, 232-33
(4th Cir. 2014) (upholding guilty plea where, even assuming the
district court’s use of the Petition in a Rule 11 hearing was
plain error, Appellant had not shown a reasonable probability
that, but for the error, she would not have entered the plea);
United States v. Reeves, 533 F. App’x 301, 304 (4th Cir. 2013)
(finding that alleged plain errors did not affect defendant’s
substantial rights, but notably, suggesting that evidence before
the district court at the plea hearing, which was similar to the
evidence before the district court in the case at hand, “may
indeed be inadequate to establish an independent factual basis
for the plea”).
19
1, 4-5 (1st Cir. 1995) (holding that district court’s use of
written document, in conjunction with colloquy with defendant,
satisfied Rule 11, explaining, “What is critical is the
substance of what was communicated by the trial court, and what
should reasonably have been understood by the defendant, rather
than the form of the communication”). We simply did not have
that situation here.
For these reasons, the district court plainly erred.
Our inquiry does not end there, however.
3.
Appellant bears the final burden of showing that the
plain error in this case affected his substantial rights. See
Fed. R. App. P. 52(b); Olano, 507 U.S. at 734. “[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 (2004); see also United States v.
Sanya, Nos. 13-4937 & 13-4938, 2014 WL 7210423 (4th Cir. Dec.
17, 2014).
Thus, on appeal, Appellant “must . . . 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.”
20
Dominguez Benitez, 542 U.S. at 83 (internal quotation marks
omitted) (emphasis supplied); see also United States v. Bradley,
455 F.3d 453, 462 (4th Cir. 2006) (“We consider the entire
record in determining whether the[] [plain error] requirements
have been met.”). We have explained,
When determining whether a Rule 11 error
affected a defendant’s substantial rights,
we consider what information was provided to
the defendant when he pleaded guilty, what
additional information would have been
provided by a proper Rule 11 colloquy, and
how the additional information would have
affected the decision to plead guilty.
United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008).
Even if we find the error affected substantial rights, we will
not correct the error unless it would “seriously affect the
fairness, integrity or public reputation of judicial
proceedings.” Sanya, 2014 WL 7210423, at *2 (internal quotation
marks omitted).
a.
Appellant’s attempts to satisfy his burden fall flat.
He first attempts to show a reasonable probability that he would
have not pled guilty but for the error by explaining (1) he
instructed his attorney to file an appeal after the sentencing
hearing; (2) “the district court’s near-total failure to
personally address [Appellant] . . . created an unacceptably
high risk that defendants like [Appellant] will plead guilty in
21
this district court without fully understanding their rights
. . . . ,” Appellant’s Br. 28-29; and (3) he “had a number of
potentially viable defenses that are apparent from the record,
such as multiple-conspiracies theory or a buyer-seller theory,”
Appellant’s Reply Br. 8.
To be sure, had the district court performed the Rule
11 plea hearing correctly, it would have -- at the hearing --
personally addressed Appellant regarding the voluntariness of
the plea, his education, and his competency; insisted that the
Government specifically explain what evidence it possessed
showing Appellant’s knowledge of the conspiracy; personally
consulted with Appellant as to each constitutional right he was
waiving; explained to Appellant that any statements he made
could be used against him in a perjury proceeding; allowed
Appellant to elaborate more on his statement of his involvement
with the charged crime; ensured Appellant read the plea
agreement and Petition and discussed them with counsel;
confirmed Appellant’s understanding of the mandatory minimum
sentence; and ensured that the plea was being entered into
without threat, promise, or coercion. See Hairston, 522 F.3d at
341.
It is unclear, however, how this information would
have influenced Appellant’s decision to plead guilty, if at all.
See Hairston, 522 F.3d at 341. We have no statements on the
22
record, at any stage of the trial proceedings, demonstrating
that Appellant wished to withdraw his guilty plea or would have
gone to trial but for the errors. Compare Massenburg, 564 F.3d
at 343 (appellant did not show his substantial rights were
affected where “there are no statements on the record before us
suggesting that Massenburg would not have pleaded guilty if the
district court had properly informed him of the sentencing
exposure that he faced”), with Sanya, 2014 WL 7210423, at *7
(concluding that Sanya’s substantial rights were affected based
on his refusal to sign a plea agreement before the plea hearing,
the district court’s “repeated and direct . . . exhortations” to
plead guilty during the hearing, and Sanya’s “[i]mmediate[]
. . . withdr[awal of] his insistence on going to trial”), and
Hairston, 522 F.3d at 342 (same, where Hairston stated on the
record, “Your Honor, I would not have signed a paper [to be
incarcerated] for 45 years. My kids would never see me again
. . . . I would never have signed for no 45 years”; thus, “the
record establishes that Hairston would not have pleaded guilty
if he had known” his exposure at sentencing (internal quotation
marks omitted)).
b.
With regard to the factual basis, Appellant further
argues, “if the district court had correctly concluded that
[Appellant’s] guilty plea lacked a factual basis, a different
23
outcome would have been not just reasonably probable, but
certain.” Appellant’s Br. 31; see also Fed. R. Crim. P.
11(b)(3). But on plain error review, we “may consult the whole
record when considering the effect of any error on substantial
rights.” United States v. Vonn, 535 U.S. 55, 59 (2002); see
also Dominguez Benitez, 542 U.S. at 80 (“[W]e explained [in
Vonn] that in assessing the effect of Rule 11 error, a reviewing
court must look to the entire record, not to the plea
proceedings alone . . . .”); cf. United States v. Hildenbrand,
527 F.3d 466, 475 (5th Cir. 2008) (“When determining whether
there is a factual basis for a guilty plea, inferences may be
fairly drawn from the evidence adduced after the acceptance of a
guilty plea but before or at sentencing,” including evidence set
forth in the Presentence Investigation Report.). Here,
Appellant’s Presentence Investigation Report, to which he did
not object, recites 12 paragraphs of facts, spanning three
pages, that demonstrate Appellant’s knowledge of and
participation in the conspiracy. Cf. Mastrapa, 509 F.3d at 660
(finding defendant’s substantial rights were affected where
defendant consistently stated that he had no idea he was
transporting drugs for the other members of the purported
conspiracy, even after the plea hearing).
Our review of the record in this case does not show
that the Rule 11 errors “influenced [Appellant’s] decision to
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plead guilty and impaired his ability to evaluate with eyes open
the direct attendant risks of accepting criminal
responsibility.” United States v. Thorne, 153 F.3d 130, 133
(4th Cir. 1998) (internal quotation marks omitted). Appellant
therefore fails to show his substantial rights were affected,
and we are compelled to affirm the district court.
C.
The Government’s motion to dismiss the appeal based on
the appellate waiver in Appellant’s plea agreement remains
pending. For an appeal waiver to be effective, “the record must
show that the waiver was based upon a knowing and intelligent
decision.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks omitted). We must evaluate
this issue “by reference to the totality of the circumstances,
including the experience and conduct of the accused, as well as
the accused’s educational background and familiarity with the
terms of the plea agreement.” Id. (internal quotation marks
omitted).
As discussed above, Appellant has a limited
educational background and was enrolled in special education
classes. The district court never explained the plea agreement
to him or sufficiently ensured that his attorney did so. The
district court also never asked specifically whether Appellant
understood the waiver of his appeal rights. Considering the
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totality of the circumstances, we conclude Appellant’s waiver
was neither knowing nor intelligent. See United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010) (An appellate waiver
“is not knowingly or voluntarily made if the district court
fails to specifically question the defendant concerning the
waiver provision of the plea agreement during the Rule 11
colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver.”
(internal quotation marks omitted)). But cf. United States v.
Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (waiver was
effective where the trial judge “established that the defendant
was educated, was represented by counsel, and had discussed with
her lawyer the nature of the charge to which she was pleading”);
United States v. Attar, 38 F.3d 727, 731-32 (4th Cir. 1994)
(waiver was valid and enforceable where the trial court
“conducted an extensive Rule 11 colloquy with [defendant],”
where “the court established that [defendant] was a well-
educated man with a Ph.D. in chemistry [and] was fully competent
to plead for himself and the corporate defendant”; and the court
“then summarized the terms of the written plea agreement for
[defendant], including the provision waiving appeal rights”).
Therefore, the motion is DENIED.
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IV.
We may well have reached a different disposition today
had trial counsel objected to the district court’s disregard for
the plain language of Rule 11. It is also noted that, as
represented at oral argument, the habit of allowing the Petition
to serve as a proxy for personalized courtroom contact with
defendants in this particular district court has gone largely
unchallenged by either side of the plea process. The plea
process is meant to “bring[] to the criminal justice system a
stability and a certainty” that, in this case, were noticeably
lacking. Premo v. Moore, 131 S. Ct. 733, 745 (2011). The
United States Attorney’s office would do well to remember that
it is “the representative . . . of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done.” Berger v. United States, 295 U.S. 78,
88 (1935). Thus, the Government should stand as a conservator
of the plea process, not a silent beneficiary of shortcuts.
V.
For the foregoing reasons, the Government’s motion to
dismiss is denied, and the district court is affirmed.
MOTION TO DISMISS DENIED;
JUDGMENT AFFIRMED
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