United States v. Hagler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS LEON HAGLER, a/k/a Black Jesus,
Defendant - Appellant.
No. 08-5012
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE NOBLE,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr.,
District Judge. (3:06-cr-00748-JFA-5; 3:06-cr-00748-JFA-9)
Submitted: March 10, 2010 Decided: March 25, 2010
Before MICHAEL, GREGORY, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Janis Richardson Hall, Greenville, South Carolina; Kirsten E.
Small, NEXSEN PRUET, LLC, Greenville, South Carolina, for
Appellants. Robert Frank Daley, Jr., Jimmie Ewing, Assistant
United States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Travis Leon Hagler and Tyrone Noble pled guilty to a
crack cocaine conspiracy and were sentenced to 240 and 252
months in prison, respectively. Under the terms of their plea
agreements, Hagler and Noble agreed to waive the right to appeal
their convictions and sentences, except for claims of
ineffective assistance or prosecutorial misconduct. In
addition, Hagler reserved the right to appeal the district
court’s conclusion that he had a prior felony for sentencing
purposes.
The Government moves to dismiss the appeals based upon
the appellate waivers. Counsel for each defendant has filed an
Anders 1 brief, and each defendant filed a pro se supplemental
brief. Hagler’s counsel raised the issue of whether Hagler’s
Fed. R. Crim. P. 11 hearing was properly conducted, and Hagler
raised pro se challenges to the prior conviction used to enhance
his minimum sentence. Noble’s counsel challenged the
voluntariness of the guilty plea, as well as Noble’s sentencing
enhancements based upon his leadership role and his prior
conviction. Noble’s pro se brief reargued claims raised by
counsel and also asserted that his sentence was improperly
enhanced based on his possession of a firearm.
1
Anders v. California, 386 U.S. 738 (1967).
3
I.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). See United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). We review
the validity of an appellate waiver de novo and will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is generally considered to be knowing and voluntary if the
district court specifically questioned the defendant concerning
the waiver provision during the Rule 11 colloquy and the record
indicates that the defendant understood the full significance of
the waiver and was not denied effective assistance of counsel.
See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, even a valid appellate waiver does not waive every
appellate issue. See, e.g., United States v. Attar, 38 F.3d
727, 732-33 & n.2 (4th Cir. 1994) (holding that waiver of appeal
does not bar colorable constitutional challenge to the
voluntariness of a guilty plea).
During the Defendants’ Rule 11 hearings, the district
court specifically questioned them about the appellate waivers
and, after doing so, found that they had voluntarily and
intelligently entered their pleas. The record reveals nothing
to suggest that the district court’s finding was erroneous, and
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neither Defendant raises a claim regarding the appellate waiver. 2
Accordingly, we conclude that the appellate waivers contained in
the Defendants’ plea agreements are valid and enforceable.
Moreover, the Defendants’ appellate waivers of the
right to appeal their convictions and sentences encompass
Hagler’s assertions of Rule 11 error, 3 as well as Noble’s claims
of sentencing error. Thus, we grant the Government’s motions to
dismiss in part. Hagler’s claims regarding his prior conviction
were specifically excepted from the appellate waiver, and
Noble’s assertion that his plea was involuntary may not be
waived. Accordingly, we deny the Government’s motions with
regard to these claims.
II.
Noble contends that his plea was not constitutionally
valid because his mental illness prevented the plea from being
2
Noble claims that his mental illness rendered his guilty
plea involuntary and unknowing. As discussed above, a claim
attacking the voluntariness of the guilty plea cannot be waived;
as such, this claim will be examined on the merits. However,
Noble does not specifically allege that his waiver was unknowing
or involuntary. In any event, even should Noble’s claim be
expanded to attack the validity of his waiver, it is meritless
for the reasons discussed below.
3
Rule 11 error is not constitutional error, see McCarthy v.
United States, 394 U.S. 459, 465 (1969), and Hagler makes no
allegation that any Rule 11 error affected the voluntariness of
his plea.
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voluntary or intelligent. He also asserts that the court should
have held a competency hearing. The standard for determining
whether a guilty plea is constitutionally valid is whether the
plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant. Burket v.
Angelone, 208 F.3d 172, 190 (4th Cir. 2000). In applying this
standard, courts look to the totality of the circumstances
surrounding the plea. Id. “The test for determining competency
is whether [a defendant] has sufficient 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.” United
States v. General, 278 F.3d 389, 395-96 (4th Cir. 2002).
At Noble’s plea hearing, he testified that he had
never been treated for a mental illness, and both his counsel
and the Government stated that they had no questions about
Noble’s competency. The court then found Noble competent to
plead guilty. Throughout the remainder of the plea hearing,
Noble responded appropriately and predictably and gave no
indication that he was unable to understand the proceedings. He
testified that he was satisfied with his attorney and understood
the charges against him. He also affirmed that the Government’s
statement of facts was correct.
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At sentencing, Noble’s counsel stated that he was
appointed after a psychiatric examination was conducted. After
speaking with Noble extensively, the psychiatrist determined
that he was competent to stand trial, and Noble’s attorney
stated that he did not “have a question about his competency.”
However, counsel noted that Noble suffered from post traumatic
stress disorder, major depression, a cognitive disorder, and
substance abuse issues. He argued that, while Noble was
competent, he had certain difficulties making judgment calls.
When Noble allocuted, he spoke rationally and logically about
his criminal conduct and how his past convictions were impacting
his sentencing exposure.
On appeal, Noble frivolously argues that the
psychiatric examination supported his claim that he was
incompetent, even though the report actually concluded that he
was competent. Noble also asserts that prison officials have
told him that he has severe memory problems. We find that it
was clear from the proceedings that Noble was able to consult
with his lawyer and had a rational understanding of the
proceedings against him. While he apparently had certain mental
issues, there is no evidence that his competency was affected.
As such, the district court did not err in failing to hold a
competency hearing and in determining that Noble was competent
to enter a plea.
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III.
Hagler asserts that the Government did not serve a
proper notice of prior conviction under 21 U.S.C. § 851 (2006),
that the court did not explicitly ask him whether he affirmed or
denied the prior conviction, and that he was not given an
adequate opportunity to object to the use of the conviction.
The record belies Hagler’s contentions. Prior to Hagler’s plea,
the Government filed a notice of enhancement listing the
specific prior conviction that would be used to enhance Hagler’s
sentence. In his plea agreement, he specifically reserved the
right to challenge the use of his prior conviction, which
further shows his notice and understanding that the Government
intended to use the conviction to enhance his sentence.
Additionally, his presentence report (“PSR”) included
calculations based upon his prior conviction, and Hagler did not
object. Hagler was free to challenge his prior conviction at
sentencing or before, but he did not do so. Even on appeal,
Hagler does not explain why the use of his prior conviction was
improper; he argues only that the court did not utilize the
appropriate procedures.
Regarding the sentencing colloquy, § 851(b) requires
that, when the Government has filed an § 851 notice, the court
should ask the Defendant “whether he affirms or denies that he
was previously convicted as alleged” and inform the Defendant
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that “any challenge to a prior conviction which is not made
before sentence is imposed may not thereafter be raised to
attack the sentence.” However, literal compliance with the Rule
is not necessary if it is clear from the circumstances that the
defendant does not contest the validity of his prior
convictions. United States v. Steen, 55 F.3d 1022, 1028 (5th
Cir. 1995).
Here, it is clear that Hagler was aware of the
Government’s use of the prior conviction and that he withdrew
any objection to it. At his plea hearing, the disagreement over
the prior conviction and its ramifications on his sentence were
explained in detail, and Hagler stated that he understood.
Then, when he was specifically and personally questioned at
sentencing, he affirmed that he was withdrawing all objections
to the PSR. Thus, because Hagler knew about the enhancement and
made clear his position on it, any error by the district court
in failing to conduct an explicit colloquy prior to sentencing
was harmless.
IV.
Finally, Hagler asserts that the Government was
required to prove his prior conviction beyond a reasonable doubt
in order to enhance his sentence. However, Hagler’s prior
conviction, which increased the mandatory minimum but had no
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effect on the statutory maximum, need only be determined by a
preponderance of the evidence. See United States v. Estrada,
428 F.3d 387, 389-91 (2d Cir. 2005). Moreover, as discussed
above, Hagler did not dispute the existence or validity of the
conviction. Further, because Hagler failed to object, the
district court was not required to hold a hearing or to make
specific findings of fact before adopting the recommendations in
the PSR. United States v. Love, 134 F.3d 595, 606 (4th Cir.
1998).
Pursuant to Anders, we have examined the entire record
in these cases for reversible error and have found none.
Accordingly, we dismiss Hagler’s appeal from his conviction and
Noble’s appeal from his sentence. We affirm Hagler’s sentence
and Noble’s conviction. We deny Noble’s motions to place his
appeal in abeyance.
This court requires that counsel inform her client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If either of the clients
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal
10
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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