US v. Tariq Vaughn

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998299073-2] in 09-4519 Originating case number: 3:08-cr-00468-HEH-1 Copies to all parties and the district court/agency. [998426113] [09-4519, 09-4565]

US v. Tariq Vaughn

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4519 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TARIQ A. VAUGHN, Defendant ­ Appellant.

No. 09-4565 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TARIQ A. VAUGHN, Defendant ­ Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge; Richard L. Williams, Senior District Judge. (3:08-cr00468-HEH-1; 3:02-cr-00075-RLW-1) Submitted: August 5, 2010 Decided: September 16, 2010

Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.

Dockets.Justia.com

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No. 09-4519 dismissed; No. 09-4565 affirmed by unpublished per curiam opinion. Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Olivia N. Hawkins, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: In February 2002, Tariq Vaughn was indicted for

possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (2006). Vaughn plead

guilty and was sentenced to 72 months' imprisonment, followed by a three-year term of supervised release. In September 2008, following his release from prison, Vaughn was arrested by local authorities in Richmond, Virginia, and found to be in possession of "crack" cocaine. In October

2008, Vaughn appeared before the district court and plead guilty to various violations of his supervised release term, including possession of crack cocaine; however, the hearing was continued to allow the new criminal charges to be adjudicated. In November 2008, Vaughn was indicted for possession with intent to distribute more than five grams of cocaine base in violation plead of 21 U.S.C. and same § 841(a)(1) was time and (b)(1)(B) to 240 (2006). months' on the

Vaughn

guilty At the

sentenced he was

imprisonment.

sentenced

possession charge, Vaughn was also sentenced for the supervised release violation. Ultimately, Vaughn received an additional

36 months' imprisonment for the supervised release violation, to be served consecutive to his sentence for drug possession.

These matters were consolidated for review on appeal.

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Vaughn

first

challenges

the

adequacy

of

his

guilty

plea to the drug possession charge.

The Government has moved to

dismiss this portion of his appeal based on an appellate waiver clause in his plea agreement. A waiver is defendant knowing may and The motion will be granted. the right to appeal if that v.

waive

intelligent.

United

States

Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005).

Whether a

defendant validly waived his right to appeal is a question of law that this court reviews de novo. 408 F.3d 162, 168 (4th Cir. 2005). waiver is knowing of the and intelligent, United States v. Blick, To determine whether a this United court examines v. "the

totality

circumstances."

States

General,

278 F.3d 389, 400 (4th Cir. 2002).

Generally, if the district

court fully questions a defendant regarding the waiver of his right to appeal during the Rule 11 colloquy, the waiver is both valid and enforceable. United States v. Johnson, 410 F.3d 137,

151 (4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). Vaughn argues the Government's motion should be denied solely because he told the district court he took medication for certain non-descript "impulse control" problems at his plea

colloquy, thereby placing the court under a heightened duty to investigate his mental state to determine whether he was

competent to enter a guilty plea, which he maintains, the court 4

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did not adequately do.

Vaughn makes this argument despite the

fact that both he and his attorney unequivocally stated at the Rule 11 hearing that he could communicate and understand the proceedings. Vaughn has not cited any pertinent authority to

support his position. "Absent clear and convincing evidence to the

contrary," a defendant is generally bound by statements made under oath during his Rule 11 plea colloquy. See Fields v.

Att'y Gen. of State of Md., 956 F.2d 1290, 1299 (4th Cir. 1992); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (a defendant's "present a declarations formidable in court affirming in any a plea agreement . . .

barrier

subsequent

proceedings") (internal quotation marks omitted).

Here, Vaughn

has not presented any evidence, much less clear and convincing evidence, to contradict his statements to the district court that neither his "impulse control" problem, nor the drugs he was taking for it, affected his decision-making ability. Accordingly, we find that Vaughn remains bound by his in-court statements. intelligently given, Because Vaughn's plea was knowingly and and because this portion of his appeal

falls squarely within the scope of the appellate waiver to which he agreed, we grant the Government's motion and dismiss

Vaughn's appeal in No. 09-4519.

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Vaughn also argues that the district court failed to adequately supervised sentences explain release imposed his within-guidelines This of court sentence generally for his

violation. upon

reviews to

revocation

supervised

release

determine whether: (1) they are within the prescribed statutory range; and (2) they are "plainly unreasonable." United Here,

States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).

however, the Government argues that plain-error review should be applied because Vaughn did not adequately preserve an objection to the district court's explanation of his sentence. In order to preserve his claim for appellate review, a defendant must lodge a contemporaneous objection to the district court's explanation or "ask for a sentence outside the range calculated by the court prior to sentencing." v. Thompson, 595 F.3d Vaughn 544, 546 (4th to Cir. a See United States 2010). It is

undisputed objection

that to the

failed

lodge

contemporaneous thus, the

district

court's

explanation;

threshold question becomes whether Vaughn asked for "a sentence outside the range calculated by the court prior to sentencing." Below, Vaughn's attorney merely stated that he did not believe that Vaughn's conduct "warrant[ed] a maximum sentence," and he asked the court "to consider something less than that," though he did not offer any suggestion as to what he thought might be an appropriate sentence. 6 These vague statements are

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insufficient to preserve an objection to the adequacy of the district States v. court's Lynn, explanation. 592 F.3d 572, As 580 was the case in United where

(4th

Cir.

2010),

defendant Avery Peake failed to "ask the court to depart from the correctly to a calculated full Guidelines review range," of this Vaughn issue. is not

entitled

appellate

Accord

United States v. Bostic, No. 09-4251, 2010 WL 1735509, at *1 (4th Cir. April 29, 2010) (applying plain-error review where defendant "did not argue for a sentence outside of his

guidelines range"). To establish plain error, Vaughn must show that an error: (1) was made; (2) is plain (i.e., clear or obvious); and (3) affects his substantial rights. United States v.

Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). makes this three-part showing, this court may

Even if he exercise its

discretion to correct the error only if it "seriously affects the fairness, integrity or public reputation of judicial

proceedings."

Id. at 343 (internal quotation marks omitted). Accordingly, we affirm his supervised

Vaughn has failed to meet this burden. the sentence imposed upon Vaughn

following

release violation.

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We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. No. 09-4519 DISMISSED No. 09-4565 AFFIRMED

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