US v. Travis Hagler, No. 08-4843 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4843 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS LEON HAGLER, a/k/a Black Jesus,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: Before MICHAEL, GREGORY, and AGEE, Circuit Judges. March 25, 2010 Affirmed in part; dismissed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Travis Leon Hagler and Tyrone Noble pled guilty to a crack cocaine conspiracy and were months in prison, respectively. sentenced to 240 and 252 Under the terms of their plea agreements, Hagler and Noble agreed to waive the right to appeal their convictions ineffective addition, and sentences, assistance Hagler or reserved except prosecutorial the right to for claims misconduct. appeal the of In 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 conviction. Noble s counsel and also upon his pro asserted se leadership brief that role reargued his claims sentence enhanced based on his possession of a firearm. 1 Anders v. California, 386 U.S. 738 (1967). 3 and was his prior raised by improperly 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). is generally considered to be knowing An appellate waiver 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 issue. appellate waiver does not waive every 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 intelligently entered their pleas. they had voluntarily and The record reveals nothing to suggest that the district court s finding was erroneous, and 4 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, right to the Defendants appeal their appellate convictions and waivers sentences of the encompass Hagler s assertions of Rule 11 error, 3 as well as Noble s claims of sentencing error. dismiss in part. were specifically Noble s waived. assertion Thus, we grant the Government s motions to Hagler s claims regarding his prior conviction excepted that Accordingly, his we from plea deny the was the appellate involuntary Government s waiver, may and not motions be 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. 5 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. Angelone, 208 F.3d 172, 190 (4th Cir. 2000). standard, courts look surrounding the plea. is whether [a to Id. the totality of Burket v. In applying this the circumstances The test for determining competency 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 Noble s competency. plead guilty. Noble responded stated that they had no questions about The court then found Noble competent to Throughout the remainder of the plea hearing, 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. 6 At sentencing, Noble s counsel stated that he appointed after a psychiatric examination was conducted. speaking with that was he Noble extensively, competent to stand the psychiatrist trial, and was After determined 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, substance abuse major depression, issues. He a cognitive argued that, disorder, while Noble and 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 psychiatric appeal, examination Noble frivolously supported his argues claim that the he was that 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 proceedings against him. had a rational understanding of the 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. 7 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. the Government filed a notice of Prior to Hagler s plea, enhancement listing the specific prior conviction that would be used to enhance Hagler s sentence. right to In his plea agreement, he specifically reserved the challenge the use of his prior conviction, which further shows his notice and understanding that the Government intended to Additionally, use his the conviction presentence to enhance report his sentence. ( 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 8 that any challenge to a prior conviction which is not made before sentence is imposed attack the sentence. may not thereafter be raised to 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 United States v. Steen, 55 F.3d 1022, 1028 (5th convictions. 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 Then, in when detail, he was and Hagler specifically stated and that personally he understood. 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 9 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. and Noble s conviction. We affirm Hagler s sentence 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 United States for further review. the Supreme Court of the 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 10 because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 11