United States v. Dade

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4341
DAMON DADE, a/k/a Johnny,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-99-425-A)
Submitted: November 20, 2001
Decided: February 7, 2002
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Cheryl J. Sturm, Chadds Ford, Pennsylvania, for Appellant. Kenneth
E. Melson, United States Attorney, Mark Grider, Special Assistant
United States Attorney, Gene Rossi, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DADE
OPINION
PER CURIAM:
Pursuant to a plea agreement, Damon Dade pled guilty to conspir-
acy to possess with intent to distribute one kilogram or more of phen-
cyclidine (PCP), in violation of 21 U.S.C.A. § 846 (West 1999). Dade
received a 292-month term of imprisonment. On appeal, Dade argues
that his plea agreement is involuntary and unknowing due to ineffec-
tive assistance of counsel and that the court did not advise him that
drug quantity was an element of the offense. He also raises sentencing
issues.
Dade signed a written plea agreement in which he agreed to waive
the right to appeal "any sentence within the maximum provided in the
statute(s) of conviction (or the manner in which that sentence was
determined)." A waiver of appeal provision in a valid plea agreement
is enforceable if it results from a knowing and intelligent decision to
forego an appeal. United States v. Attar, 38 F.3d 727, 731 (4th Cir.
1994); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A
waiver is ineffective if the district court fails to question the defendant
about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.
1991), unless other evidence in the record shows that the waiver was
informed and voluntary. United States v. Davis, 954 F.2d 182, 186
(4th Cir. 1992). We review de novo the validity of a waiver. United
States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000).
Here, Dade signed the plea agreement, agreeing to waive the right
to challenge the sentence with the stated exception. The Government
summarized the plea agreement at the Fed. R. Crim. P. 11 hearing. In
response to the district court’s inquiry, Dade agreed that the right to
appeal his conviction and sentence was expressly waived in the plea
agreement. He did not express dissatisfaction with counsel’s services.
He also stated that he understood the Rule 11 proceeding.
Dade argues that his guilty plea should be invalidated because he
received ineffective assistance of counsel. Claims of ineffective assis-
tance are not cognizable on direct appeal unless counsel’s ineffective-
ness plainly appears on the face of the record. United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). We have reviewed
UNITED STATES v. DADE 3
the record for error and have found no clear ineffective assistance by
trial counsel.
Dade also argues that his plea was taken in violation of Rule 11
because he was not told that drug quantity was an element of the
offense that the prosecution would have to prove to a jury beyond a
reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S.
466 (2000). Under Apprendi, "[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi, 530 U.S. at 490. This court,
in applying Apprendi to § 841, held that "the specific threshold [drug]
quantity must be treated as an element of an aggravated drug traffick-
ing offense, i.e., charged in the indictment and proved to the jury
beyond a reasonable doubt." United States v. Promise, 255 F.3d 150,
156-57 (4th Cir. 2001) (en banc) (footnotes omitted), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398).
While a valid guilty plea constitutes an admission of the material
elements of the crime, McCarthy v. United States, 394 U.S. 459, 466
(1969), and waives non-jurisdictional errors, such as defects in the
indictment, Tollett v. Henderson, 411 U.S. 258, 267 (1973), Fed. R.
Crim. P. 11(c) requires the district court to inform the defendant of
the nature of the charge. To comply with this requirement, the district
court must explain what the Government must prove to establish
guilt. United States v. Carter, 662 F.2d 274, 276 (4th Cir. 1981). Fail-
ure to explain the elements of the charge or its nature is per se error.
Id.; see United States v. Davis, 184 F.3d 366, 371 n.5 (4th Cir. 1999).
In such a case, unless the error is deemed harmless, the defendant
must be permitted to withdraw his guilty plea and enter a new plea.
Id.; see also United States v. Longoria, 113 F.3d 975, 977 (9th Cir.
1997) (vacating guilty plea for failure to explain nature of charge);
United States v. Dewalt, 92 F.3d 1209, 1213-15 (D.C. Cir. 1996)
(same). A violation of Rule 11(c) is harmless error if the error did not
violate the defendant’s substantial rights. Fed. R. Crim. P. 11(h);
United States v. Thorne, 153 F.3d 130, 133 (4th Cir. 1998).
In the instant case, Dade was not informed at his Rule 11 hearing
that drug quantity was an element of the offense that the Government
would be required to prove beyond a reasonable doubt in order to
4 UNITED STATES v. DADE
impose an enhanced sentence under § 841(b)(1)(A) should he go to
trial. Promise, 255 F.3d at 156-57. This failure to explain the element
of drug quantity was error. See Carter, 662 F.2d at 276; Davis, 184
F.3d at 371 n.5.
However, the plea may be upheld if the failure to inform was harm-
less error. See Thorne, 153 F.3d at 133, United States v. Goins, 51
F.3d 400, 402-03 (4th Cir. 1995). Failure to comply with Rule 11 is
harmless error if the failure does not violate a defendant’s substantial
rights. Id. To determine whether substantial rights were affected, the
court considers: (1) the defendant’s knowledge, shown by the record,
at the time he pleads guilty; (2) what information would have been
added to the defendant’s knowledge had Rule 11 been complied with;
and (3) how the proper information would have influenced the defen-
dant’s decision to plead guilty. Goins, 51 F.3d at 402. After reviewing
the record, we find that Dade would have decided to plead guilty even
if he had been told that the Government would have to prove drug
quantity. Therefore, the error was harmless.
On this record, we find that Dade’s waiver was knowingly and
intelligently made. We further find that sentencing Dade for an aggra-
vated drug offense as charged in the indictment was not error and
therefore the waiver is valid. See United States v. Stewart, 256 F.3d
231, 252 (4th Cir.) (holding that, even if sentence was plainly errone-
ous, substantial rights are not affected when the evidence implicating
a defendant in an aggravated drug offense was "uncontested and over-
whelming"), cert. denied, 122 S. Ct. 633 (2001). We therefore dismiss
the appeal.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED