US v. Travis Hagler

Filing 920100325

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed in part; dismissed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, or except for claims of In

ineffective addition,

assistance

prosecutorial the right to

misconduct. appeal the

Hagler

reserved

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 conviction. counsel and based upon pro his se leadership brief role and his prior by

Noble's also

reargued

claims was

raised

asserted

that

his

sentence

improperly

enhanced based on his possession of a firearm.
1

Anders v. California, 386 U.S. 738 (1967).

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I. A defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). See United 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. Blick, 408 F.3d 162, 168 (4th Cir. 2005). is generally considered to be knowing See United States v. An appellate waiver voluntary if the

and

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, right to appeal the their Defendants' convictions appellate and waivers of the

sentences

encompass

Hagler's assertions of Rule 11 error, 3 as well as Noble's claims of sentencing error. dismiss in part. were specifically assertion Thus, we grant the Government's motions to

Hagler's claims regarding his prior conviction excepted that his we from plea the was appellate involuntary waiver, may not and be

Noble's waived.

Accordingly,

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. 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.
3

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voluntary or intelligent.

He also asserts that the court should The standard for determining

have held a competency hearing.

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 to Id. the totality of Burket v.

In applying this the circumstances

surrounding the plea. is whether [a

"The test for determining competency has sufficient present ability to

defendant]

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." States v. General, 278 F.3d 389, 395-96 (4th Cir. 2002). At Noble's plea hearing, he testified that he had United

never been treated for a mental illness, and both his counsel and the Government stated that they had no questions about

Noble's competency. plead guilty. Noble responded

The court then found Noble competent to

Throughout the remainder of the plea hearing, appropriately and predictably and gave no He

indication that he was unable to understand the proceedings.

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. speaking that he with was Noble extensively, to stand the psychiatrist and

After

determined attorney

competent

trial,

Noble's

stated that he did not "have a question about his competency." However, counsel noted that Noble suffered from post traumatic stress disorder, abuse major issues. depression, He a cognitive that, disorder, Noble and was

substance

argued

while

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 his argues claim that that he the was

supported

incompetent, even though the report actually concluded that he was competent. Noble also asserts that prison officials have We find that it

told him that he has severe memory problems.

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. 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 use his the conviction presentence to enhance his sentence. included

Additionally,

report

("PSR")

calculations based upon his prior conviction, and Hagler did not object. Hagler was free to challenge his prior conviction at Even on appeal,

sentencing or before, but he did not do so.

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 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. Cir. 1995).

United States v. Steen, 55 F.3d 1022, 1028 (5th

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, when in he detail, was and Hagler stated and that he understood. at

specifically

personally

questioned

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, Moreover, as discussed

428 F.3d 387, 389-91 (2d Cir. 2005).

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. 1998). Pursuant to Anders, we have examined the entire record in these cases for reversible error and have found none. United States v. Love, 134 F.3d 595, 606 (4th Cir.

Accordingly, we dismiss Hagler's appeal from his conviction and Noble's appeal from his sentence. and Noble's conviction. appeal in abeyance. This court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the We affirm Hagler's sentence

We deny Noble's motions to place his

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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