United States v. General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4591
BENJAMIN GENERAL, a/k/a Bar-Kim,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-99-68-H)
Argued: September 28, 2001
Decided: January 24, 2002
Before WILKINSON, Chief Judge, and WIDENER and
WILLIAMS, Circuit Judges.
Affirmed in part and dismissed in part by published opinion. Judge
Williams wrote the opinion, in which Chief Judge Wilkinson and
Judge Widener joined.
COUNSEL
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, L.L.P., Cary,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh,
North Carolina, for Appellee.
2 UNITED STATES v. GENERAL
OPINION
WILLIAMS, Circuit Judge:
On May 18, 1999, a grand jury in the Eastern District of North Car-
olina indicted Benjamin General for three counts arising from his
involvement in a drug trafficking ring. Pursuant to a written plea
agreement, General pleaded guilty. General challenges the validity of
his guilty plea and his sentence on several grounds. For the reasons
that follow, we affirm his conviction and dismiss General’s chal-
lenges to his sentence.
I.
General and his two brothers, Danny Kennedy General and Tommy
Carnel General, were arrested for their participation in a drug traffick-
ing network in Fayetteville, North Carolina that spanned approxi-
mately ten years. General was charged with one count of conspiracy
to distribute and to possess with intent to distribute cocaine base,
cocaine powder, heroin, and marijuana, in violation of 21 U.S.C.A.
§ 846 (Count One); and two counts of using and carrying a firearm
during and in relation to a drug trafficking offense, in violation of 18
U.S.C.A. § 924(c)(1) and 18 U.S.C.A. § 2 (Counts Two and Three).
On August 24, 1999, General pleaded guilty to Counts One and
Three in exchange for the Government’s agreement to drop Count
Two. The district court accepted General’s plea and approved the plea
agreement.
On August 8, 2000, the district court sentenced General to 235
months imprisonment on Count One and 60 months imprisonment on
Count Three, to be served consecutively. On August 15, 2000, Gen-
eral filed a notice of appeal to this Court.
On appeal, General raises several challenges to the validity of his
guilty plea and to his sentence. We address each challenge in turn.
II.
General first argues that because the indictment did not contain
drug quantity and the district court did not inform him that the Gov-
UNITED STATES v. GENERAL 3
ernment would be required to prove drug quantity beyond a reason-
able doubt, his plea is involuntary and, thus, constitutionally invalid
under Apprendi v. New Jersey, 530 U.S. 466 (2000). Typically, we
review the voluntariness of a guilty plea de novo. United States v.
Goins, 51 F.3d 400, 402 (4th Cir. 1995). Here, however, because
General failed to challenge the indictment or otherwise question the
nature of his offense before the district court, we review for plain
error. See United States v. Dinnall, 269 F.3d 418 (4th Cir. 2001). We
may notice an error not preserved by a timely objection only if the
defendant establishes "that error occurred, that the error was plain,
and that the error affected his substantial rights." United States v.
Hastings, 134 F.3d 235, 239 (4th Cir. 1998). Even when a defendant
satisfies these standards, "correction of the error remains within our
sound discretion, which we should not exercise . . . unless the error
seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings." Id. (internal quotation marks omitted) (alteration in
original).
This Circuit has made clear that we look to the sentence that actu-
ally was imposed to determine whether Apprendi has been violated.
In Promise, we held that an indictment that does not include drug
quantity properly charges an offense under § 841, but that the penalty
cannot exceed that attributable to an offense for an unspecified quan-
tity of the drug type alleged in the indictment. United States v. Prom-
ise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (Wilkins, J., joined
by Williams and Traxler, JJ.) ("We conclude that the error was not in
Promise’s conviction. . . . Promise was properly charged with conspir-
ing to violate 21 U.S.C.A. § 841. . . . The problem, therefore, lies with
Promise’s sentence."); id. at 188-89 (Motz, J., joined by Widener,
Michael, and King, JJ., concurring in part and dissenting in part, and
dissenting in the judgment) ("[A]lthough the government presented
the grand jury with an indictment containing only the elements neces-
sary to charge [the defendant] with a violation of § 841(b)(1)(C), the
district court sentenced him to the more serious crime defined in
§ 841(b)(1)(A)." (emphasis added)); United States v. Cotton, 261 F.3d
397, 404 (4th Cir. 2001) (noting that this Court determines the offense
under § 841 by reference to the sentence imposed), cert. denied, 2002
WL 10623 (U.S. Jan. 4, 2002) (No. 01-687). General properly was
charged with the offense of conspiring to distribute an unspecified
quantity of cocaine base, cocaine powder, heroin, and marijuana, and
4 UNITED STATES v. GENERAL
his 235 month sentence is less than the statutory maximum for his
offense. See 21 U.S.C.A. § 841(b)(1)(C) (West 1999). The failure to
include drug quantity in the indictment does not invalidate General’s
guilty plea because drug quantity is not an element of the offense for
which he was sentenced. Accordingly, General cannot demonstrate
that either his indictment or the district court’s explanation of the
charges against him was erroneous, much less plainly erroneous.1
III.
General next argues that his five-year supervised release term vio-
lates Apprendi, contending that § 841(b)(1)(C) allows for a maximum
supervised release term of three years. General has misread
§ 841(b)(1)(C), which clearly provides for a minimum supervised
release term of three years, not a maximum. Because General’s five-
year supervised release term does not exceed the statutory range
allowable without regard to drug quantity, Apprendi is inapplicable.
Indeed, we rejected an identical claim in United States v. Pratt, 239
F.3d 640, 648 (4th Cir. 2001). Accordingly, we affirm General’s
supervised release term.
IV.
General argues that the district court committed reversible error by
failing to advise him during the plea colloquy about the five year
mandatory minimum sentence applicable to his firearm charge. See 18
U.S.C.A. § 924(c) (West 2000) (providing a five year mandatory
minimum for carrying a firearm during and in relation to a drug traf-
ficking offense). As General notes, the district court advised General
of the statutory maximums for each count but did not advise him of
the statutory mandatory minimums for his firearm offense. Rule
11(c)(1) requires the district court to inform the defendant of a statu-
tory mandatory minimum sentence before accepting a guilty plea.
Fed. R. Crim. P. 11(c)(1) ("Before accepting a plea of guilty . . . the
1
At oral argument, General explicitly waived the argument that his
guilty plea was invalid because he was threatened with a higher sentence
than that which he was eligible to receive. Thus, we do not address
whether and to what extent this argument would affect our Apprendi
analysis.
UNITED STATES v. GENERAL 5
court must . . . inform the defendant of, and determine that the defen-
dant understands . . . the mandatory minimum penalty provided by
law . . . ."). Because General did not seek withdrawal of his guilty
plea on this ground in the district court, the violation of Rule 11(c)(1)
is subject to plain error review. United States v. Martinez, No. 00-
4245, ___ WL ___ (4th Cir. Jan. 17, 2002). The district court’s non-
compliance with Rule 11(c)(1) satisfies the first two prongs of plain
error review; thus, we turn to whether the error affected General’s
substantial rights. Id.In United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995), we
established an analytical framework for evaluating whether the dis-
trict court’s failure to advise the defendant of a statutory mandatory
minimum affected the defendant’s substantial rights:
The court must first ascertain what the defendant actually
knows when he pleads guilty on the basis of an affirmative
indication in the record. Second, the court must decide what
information would have been added to the defendant’s
knowledge by compliance with Rule 11. Finally, the court
must determine how the additional or corrected information
would have likely affected the defendant’s decision.
Id. Applying this framework to General’s claim, had the district court
recited the mandatory minimum during the plea hearing, it simply
would have corroborated information already available to General in
his plea agreement. When explaining the firearm count, the plea
agreement sets forth "the charge, code section, elements, and applica-
ble penalties" and plainly states as follows: "Minimum term of
imprisonment: Five years." (J.A. at 17-18.) Thus, the plea agreement
provides, in unambiguous and simple terms, all of the information
that would have been provided by the district court’s compliance with
Rule 11(c)(1). Cf. United States v. DeFusco, 949 F.2d 114, 117 (4th
Cir. 1991) (holding that a Rule 11 violation does not affect substantial
rights if the defendant obtains the omitted information from the plea
agreement).
Importantly, General does not contend that he did not understand
the statutory mandatory minimum sentence as provided in the plea
agreement and, therefore, that the district court’s recitation of the
6 UNITED STATES v. GENERAL
mandatory minimum would have aided his understanding of the man-
datory minimum. Instead, General asserts that the plea agreement
does not cure the district court’s error because the information in the
plea agreement was incomplete, in that it did not advise him that his
sentence for the firearm offense would be required to run consecu-
tively to his sentence for the cocaine trafficking offense. Rule 11,
however, does not require a district court to inform the defendant of
mandatory consecutive sentencing. See, e.g., United States v. Ospina,
18 F.3d 1332, 1334 (6th Cir. 1994) ("[T]here is no requirement in
Fed. R. Crim. P. 11 that the court explicitly admonish a defendant that
a sentence must be imposed consecutively."). Accordingly, compli-
ance with Rule 11(c)(1) would not have provided General with infor-
mation regarding the consecutive nature of his sentence. Thus, the
consecutive nature of General’s sentence is irrelevant to our determi-
nation of whether and to what extent the district court’s compliance
with Rule 11 would have increased General’s understanding of the
statutory mandatory minimum sentence, in light of the information
available to him in the plea agreement.
Additionally, the record does not reflect that any lack of under-
standing of the mandatory minimum affected General’s decision to
enter a guilty plea, considering the tremendous sentencing advantage
General gained by pleading guilty. In exchange for his guilty plea, the
Government dropped an additional firearm charge, which would have
carried a mandatory 25-year consecutive sentence. 18 U.S.C.A.
§ 924(c)(1)(C)(i); Deal v. United States, 508 U.S. 129, 134-35 (1993)
(holding that the then-existing mandatory 20-year consecutive sen-
tence applies when two firearms offenses are charged in the same
indictment). Accordingly, we conclude that the district court’s failure
to inform General of the statutory mandatory minimum sentence for
his firearm offense did not affect General’s substantial rights.2 There-
fore, we hold that the district court’s error does not warrant reversal
of General’s firearm conviction.
2
In Goins, we reviewed the Rule 11 claim for harmless error; thus, the
Government bore the burden of proving that the Rule 11 error did not
affect Goins’s substantial rights. Because we review General’s claim for
plain error, he bears the burden of demonstrating the harmfulness of the
Rule 11 violation. We note, however, that we would conclude that the
error did not affect General’s substantial rights under either standard of
review.
UNITED STATES v. GENERAL 7
V.
General next contends that the district court violated his right to
due process when it proceeded with General’s guilty plea and sen-
tencing hearings because there was reasonable cause to believe he
was, at the time of those proceedings, legally incompetent. See United
States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995); see also Hall
v. United States, 410 F.2d 653, 658 (4th Cir. 1969) (rejecting a chal-
lenge to the defendant’s legal competency to be sentenced and noting
that "the idea of sentencing an insane person to prison remains offen-
sive and is incompatible with the dignity of the judicial process"). The
test for determining competency is whether "[a defendant] has suffi-
cient present ability to consult with his lawyer with a reasonable
degree of rational understanding . . . and whether he has a rational as
well as a factual understanding of the proceedings against him."
Dusky v. United States, 362 U.S. 402, 402 (1960).
"Competency claims can raise issues of both procedural and sub-
stantive due process." Beck v. Angelone, 261 F.3d 377, 387 (4th Cir.
2001); see also Vogt v. United States, 88 F.3d 587, 590-91 (8th Cir.
1996) (noting that the "substantive" competency principle "prohibits
the trial and conviction of a defendant who is mentally incompetent,"
while the "procedural" competency principle requires a hearing to be
held upon reasonable doubt of competency, thereby "ensur[ing] that
the substantive competency principle is not violated" (internal quota-
tion marks omitted)). An allegation that the district court erred by fail-
ing to order a competency hearing is a "procedural competency
claim." Beck, 261 F.3d at 387. An allegation, on the other hand, that
the defendant was convicted or sentenced while legally incompetent
is a "substantive competency claim." Id.Congress has established a statutory framework to protect legally
incompetent defendants from due process violations. See 18 U.S.C.A.
§ 4241 et seq. (West 2000). General contends that the district court
denied him procedural due process by violating the protections estab-
lished in this statutory framework when the district court accepted his
guilty plea without sua sponte ordering a competency hearing and
proceeded with his sentencing hearing without granting General’s
motion for a competency hearing and for further mental evaluations.
8 UNITED STATES v. GENERAL
We address General’s challenge to his guilty plea hearing and then
turn to his sentencing hearing.
A.
Section 4241 protects defendants from being convicted while
legally incompetent by establishing that "[t]he district court must sua
sponte order a competency hearing if reasonable cause [to question
the defendant’s competency] is demonstrated." Mason, 52 F.3d at
1289; 18 U.S.C.A. § 4241. Whether reasonable cause exists is a ques-
tion left to the discretion of the district court. Id. "Under the abuse of
discretion standard, this Court may not substitute its judgment for that
of the district court; rather, we must determine whether the court’s
exercise of discretion, considering the law and the facts, was arbitrary
or capricious." Id.General argues that the district court erred by accepting his guilty
plea because there was reasonable cause to doubt General’s compe-
tency at the time of the plea colloquy. The record, however, does not
establish any reasonable cause to question General’s competency at
the time of his guilty plea hearing. In fact, General’s counsel
informed the district court at the plea colloquy that General had been
evaluated for competency and that she was satisfied "after numerous
conversations with Mr. General, as well as the evaluation, that [Gen-
eral] is competent to proceed." (J.A. at 28). Thus, we reject General’s
due process challenge to his guilty plea proceeding.
B.
General argues that, even assuming his competence at the time of
his plea hearing, there was reasonable cause to believe he was incom-
petent at the time of sentencing and that the district court erred by
denying his motion for a continuance of the sentencing hearing for
further mental evaluation and for a competency hearing. Our analysis
of General’s challenge to his competency to be sentenced is governed
by 18 U.S.C.A. § 4244 (West 2000). Mason, 52 F.3d at 1288 n.2
("Section 4244 concerns a defendant’s competence to be sentenced,
whereas § 4241 relates to competence to stand trial.").
UNITED STATES v. GENERAL 9
General contends that the district court abused its discretion by
applying the wrong standard to deny General’s motion for a continu-
ance for further evaluations and for a competency hearing. See
Mason, 52 F.3d at 1290 (noting that, in refusing a competency hear-
ing, "[o]ne of the ways in which a district court may abuse its discre-
tion is in applying erroneous legal principles to the case"). In denying
General’s motion for continuance, the district court stated that based
upon all of the evidence of record, the district court was "satisfied by
a preponderance of the evidence that General was not suffering from
a mental disease or defect sufficient to justify further delay or further
evaluation." (J.A. at 59).
Like § 4241, § 4244 makes clear that General’s right to a compe-
tency hearing is governed by the reasonable cause standard. 18
U.S.C.A. § 4244 ("[A]t any time prior to the sentencing of the defen-
dant [the district court] shall order . . . a hearing . . . if it is of the opin-
ion that there is reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect . . . ."). Gener-
al’s substantive claim of incompetency, however, is governed by the
preponderance of the evidence standard. Cooper v. Oklahoma, 517
U.S. 348, 362 (1996) ("Congress has directed that the accused in a
federal prosecution must prove incompetence by a preponderance of
the evidence."). The district court’s use of the preponderance of the
evidence standard indicates that it determined that General was sub-
stantively competent to proceed to the sentencing hearing, but the dis-
trict court did not address General’s procedural right to a competency
hearing. Thus, we review de novo the question of whether reasonable
cause existed to question General’s competency such that the district
court should have held a competency hearing. To determine whether
reasonable cause existed, we look to all of the record evidence per-
taining to the defendant’s competence, including: (1) any history of
irrational behavior; (2) the defendant’s demeanor at and prior to sen-
tencing; and (3) prior medical opinions on competency. Mason, 52
F.3d at 1290; United States v. Davis, 61 F.3d 291, 304 (5th Cir.
1995).
Prior to General’s plea hearing, General was evaluated by Dr.
James H. Hilkey, who determined General to be competent to pro-
ceed. After entering the guilty plea, General’s counsel noticed that
General’s competency was deteriorating and asked Hilkey to re-
10 UNITED STATES v. GENERAL
examine him. In November 1999, Hilkey advised the district court
that General was exhibiting paranoia and loose associations, render-
ing him unable to assist with his defense and incompetent to proceed
to the sentencing hearing. Based upon Hilkey’s medical opinion of
incompetence, the district court continued General’s sentencing to
allow for General’s mental evaluation at the Federal Correctional
Institution at Butner, North Carolina.
After three months of evaluation, Butner’s mental health staff
issued a report (the Butner Report) advising the district court that,
although General had "mild psychosis" upon arrival, he was no longer
exhibiting paranoia, loose associations, or other evidence of incompe-
tence. (J.A. at 137-39.) The Butner Report noted General’s Full Scale
IQ to be 78, which indicates borderline or below average intelligence.
See, e.g., Jones v. Johnson, 171 F.3d 270, 276 (5th Cir.) ("Even Dr.
Landrum’s low figures, however, fall within the borderline area
between mild retardation (below 70) and dull normal intelligence. We
have found that a showing of borderline or below average intelligence
does not constitute a showing of mental retardation."), cert. denied,
527 U.S. 1059 (1999). The Butner Report also suggested that the indi-
cia of incompetence seen by Dr. Hilkey may have been the result of
"wilful manipulation to avoid further legal problems." (J.A. at 139.)
It explained this suggestion by noting that General’s behavioral prob-
lems became worse when he was housed with his brothers, who were
dissatisfied with General’s decision to cooperate with the Govern-
ment. Based upon General’s overall presentation, the Butner Report
concluded that no major mental illness was indicated that would have
affected General’s ability to consult with his attorney or participate in
the sentencing hearing and that General appeared competent to pro-
ceed with the hearing. In support of its conclusion, the Butner Report
noted that General "identified the two charges to which he agreed to
plead guilty," discussed the Government’s case against him and his
reasons for pleading guilty, showed an "understanding of the court
process and the role of the parties, including that of his attorney," and
comprehended the possible lengthy sentences he faced as a result of
his plea. (J.A. at 137, 139.)
Despite the Butner Report’s competency conclusion, in August
2000, General’s counsel advised the district court that she did not
believe that General was competent to proceed to sentencing and spe-
UNITED STATES v. GENERAL 11
cifically informed the district court that General was not communicat-
ing effectively with her and was, in her opinion, unable to assist in
his sentencing proceeding. General argues that counsel’s statement is
sufficient to establish reasonable doubt, entitling him to a competency
hearing and further mental evaluations.
"Medical opinions are usually persuasive evidence on the question
of whether a sufficient doubt exists as to the defendant’s competence"
to require a competency hearing. Mason, 52 F.3d at 1290 (internal
quotation marks omitted). Here, the Butner Report is entitled to sig-
nificant weight because it is the most recent and comprehensive eval-
uation of General’s competency. Importantly, General does not
dispute or attempt to discredit the Butner Report’s methods or conclu-
sions regarding his competency, including its suggestion of General’s
propensity to engage in "wilful manipulation" to avoid being sen-
tenced. Nor does General allege a change in his mental condition
since the time of the Butner Report. Although we credit counsel’s
statements as true, they do not establish any reasonable doubt as to
General’s competence when viewed in light of the Butner Report.
Moreover, General’s demeanor at sentencing did not support a
claim of incompetency. As the district court noted, General was coop-
erative during the sentencing hearing and informed the district court
that he was able to discuss and review the presentence report with his
attorney. Further, counsel noted General’s specific objections to the
presentence report. Accordingly, based upon the totality of the evi-
dence, we conclude that the district court did not err by failing to hold
a competency hearing because reasonable cause to believe General
incompetent to proceed to sentencing was not established.
With respect to General’s claim that the district court erred by
denying his request for further mental examinations, § 4244 allows
the district court discretion to determine whether mental examinations
would aid the court’s competency determination. 18 U.S.C.A.
§ 4244(b) ("[T]he court may order that a psychiatric or psychological
examination of the defendant be conducted." (emphasis added));
United States v. Klat, 213 F.3d 697, 704 n.8 (D.C. Cir. 2000) (noting
that the district court’s decision to grant additional mental examina-
tions is committed to the district court’s discretion). As the district
court noted, General had the benefit of three mental examinations
12 UNITED STATES v. GENERAL
during the course of his proceedings. In support of his motion for fur-
ther mental examinations, General did not suggest any new evidence
or mental condition that had not been addressed in one of these prior
three examinations. Thus, the district court did not abuse its discretion
by concluding that further mental examinations were unnecessary to
resolve General’s competency to be sentenced. Cf. Hall, 410 F.2d at
657 ("Since the court was thoroughly acquainted with Hall’s mental
condition, and had recently (during the prior month) been exposed to
the testimony of 3 psychiatrists, we are not prepared to say that the
court’s determination that Hall was competent for sentencing was
unwarranted, and we reject Hall’s contention that repeated psycholog-
ical examinations are required by the statute.").
VI.
General next raises the following sentencing challenges: (1) the
district court erred by sentencing General based upon its findings
regarding a quantity of cocaine base because the indictment was
ambiguous with regard to what type of drug was the object of the con-
spiracy; (2) the district court’s drug quantity calculation to determine
his guideline range was erroneous insofar as it was based upon unreli-
able evidence;3 and (3) the district court improperly granted General
a two-level, rather than a three level, downward adjustment for accep-
tance of responsibility to his offense level for his conspiracy count.
The Government contends that this portion of General’s appeal must
be dismissed, relying upon the appellate waiver provision in Gener-
al’s plea agreement.4
3
General also asserts that the drug quantity calculation violated
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is baseless,
in that we have held that Apprendi does not apply to a drug quantity
determination under the Sentencing Guidelines where the sentence does
not exceed the statutory maximum. United States v. Kinter, 235 F.3d
192, 199-201 (4th Cir. 2000). As is noted above, General’s 235 month
sentence does not exceed the statutory maximum applicable to his
offense.
4
The Government concedes that the waiver does not bar General’s
challenges to the validity of his guilty plea because, by its own terms, it
only prohibits General’s appeal of sentencing issues. (J.A. at 14 ("To
waive knowingly and expressly the right to appeal whatever sentence is
UNITED STATES v. GENERAL 13
Whether a defendant has effectively waived his statutory right to
appeal his sentence is a question of law subject to de novo review.
United States v. Brown, 232 F.3d 399, 402 (4th Cir. 2000). General’s
plea agreement contains a provision stating:
The Defendant agrees . . . [t]o waive knowingly and
expressly the right to appeal whatever sentence is imposed
on any ground, including any appeal pursuant to 18
U.S.C.A. § 3742 . . . excepting an appeal . . . based upon
grounds of ineffective assistance of counsel or prosecutorial
misconduct not known to the Defendant at the time of the
Defendant’s guilty plea.
(J.A. at 14-15.) During the plea colloquy, the district court first
addressed all of the defendants at the same time, explaining their col-
lective general rights and considerations upon entering a guilty plea.
While addressing the group, the district court advised that "[u]nder
some circumstance, you or the government may have the right to
appeal your sentence unless you waive that right to appeal in some
type of plea agreement." (J.A. at 26.)
When turning to General individually, the district court directed
General’s attention to the plea agreement, confirmed that General had
an opportunity to read and discuss it with his lawyer before signing
it, and confirmed that General understood "all of the words, the lan-
guage, the sentences, even any legal phrases that were contained" in
the plea agreement. (J.A. at 31.) The district court did not, however,
imposed on any ground . . . .")); see, e.g., United States v. Mader, 251
F.3d 1099, 1103 (6th Cir. 2001) (holding that provision in plea agree-
ment waiving defendant’s right to appeal sentence did not waive defen-
dant’s right to appeal validity of plea). Additionally, the Government
concedes that the waiver does not bar General’s challenges to his sen-
tence pursuant to Apprendi or because of General’s lack of competency,
both of which are challenges that are not subject to contractual waivers.
See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (noting
that arguments contending that sentence was imposed based upon consti-
tutionally impermissible factors or that sentence exceeds the statutory
maximum are not barred by contractual waivers).
14 UNITED STATES v. GENERAL
mention the appellate waiver provision or inquire specifically into
whether General understood the significance of the waiver provision.5
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. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (internal quotation
marks omitted). In Davis, we held that the district court’s failure to
inform the defendant of the appellate waiver provision was relevant
to the question of whether the waiver was knowing and intelligent but
was not dispositive because the question must be evaluated by refer-
ence 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).
Reviewing the totality of the circumstances, we first note that the
waiver was unambiguous and was plainly embodied in the plea agree-
ment. Although General has a limited educational background and intel-
lect6 and the district court did not specifically ask General if he
understood the waiver provision, it did inform General of his appel-
late rights and indicate that those rights could be waived through a
plea agreement. Moreover, General was represented by counsel at all
times and, as we have discussed at length above, was competent to
participate in his defense and consult with counsel. The district court
expressly confirmed that General discussed and read the plea agree-
ment with his counsel before signing it and also questioned General
5
As General notes, the current version of Federal Rule of Criminal
Procedure 11 provides that, before accepting a guilty plea, the district
court "must determine that the defendant understands . . . the terms of
any provision in a plea agreement waiving the right to appeal . . . the sen-
tence." Fed. R. Crim. P. 11(c)(6). The effective date of the amendment
was December 1, 1999, and General’s Rule 11 hearing took place on
August 24, 1999. Even if Rule 11 applied, however, the district court’s
failure to comply with Rule 11(c)(6) would be subject to plain error
review. United States v. Martinez, No. 00-4245, ___ WL ___ (4th Cir.
Jan. 17, 2002).
6
As noted earlier, General has a Full Scale IQ of 78, which indicates
borderline or below average intellectual capacity, and he dropped out of
school after the ninth grade.
UNITED STATES v. GENERAL 15
regarding his depth of understanding of the terms of the agreement,
asking him "when you discussed and read this with your lawyer, did
you understand all of the words, the language, the sentences, even any
legal phrases that were contained herein; did you understand them?,"
to which General responded, "Yes." (J.A. at 31.) Because General
knowingly and intelligently waived his right to appeal his sentence
pursuant to the plea agreement, we dismiss his sentencing challenges.
VII.
For the foregoing reasons, we affirm General’s convictions, hold
that General’s right to due process was not violated by the district
court’s handling of his competency challenge, and dismiss General’s
sentencing challenges pursuant to his plea agreement.
AFFIRMED IN PART AND DISMISSED IN PART