US v. Joshua Cogdell

Filing 920100305

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4661

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOSHUA MICHAEL COGDELL, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:07-cr-01521-JFA-2)

Submitted:

February 12, 2010

Decided:

March 5, 2010

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

John D. Clark, CLARK LAW FIRM, LLC, Sumter, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Stanley D. Ragsdale, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joshua Michael Cogdell pled guilty to two counts in a nine-count superseding indictment for armed bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d) (2006), and for use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (2006). At sentencing, Cogdell objected to

the inclusion in his presentence report ("PSR") of a 2006 state court cocaine conviction ("the to for possession with The intent 2006 for to distribute was of U.S.

2006 be a

conviction"). predicate as a

conviction the under purpose the

determined designating

offense

Cogdell

career

offender

Sentencing Guidelines ("USSG") § 4B1.1 (2008). that his guilty plea for the 2006 conviction

Cogdell argued was obtained

without the assistance of counsel. had knowingly the and voluntarily report

The court found that Cogdell his in right its to counsel, and

waived ("PSR")

adopted

presentence

entirety,

sentenced Cogdell to 308 months in prison as a result of his designation as a career offender. Cogdell appeals, arguing

that the district court erred in designating him as a career offender under USSG § 4B1.1 because he did not knowingly and intelligently waive the right to counsel at the plea hearing for the 2006 conviction. To be classified as a career offender under § 4B1.1, the defendant must have been at least eighteen years old at the 2

time

he

committed must

the "a

offense crime

of of

conviction, violence

the a

offense

of

conviction

be

or

controlled

substance offense," and the defendant must have two prior felony convictions "of either a crime of violence or a controlled

substance offense." conviction has been

USSG § 4B1.1(a). "reversed,

Generally, unless a prior or invalidated in a

vacated,

prior case," the court must count the conviction as a predicate conviction. 1996). United States v. Bacon, 94 F.3d 158, 161 (4th Cir. defendants typically cannot collaterally

Moreover,

challenge a predicate conviction during a sentencing proceeding. See id. at to 163-64. challenge The the exception to this used rule to permits a

defendant

convictions

enhance

his

sentence when such convictions are "obtained in the absence of counsel." Id. at 162 (citing Custis v. United States, 511 U.S. When a defendant challenges his conviction on this

485 (1994)).

ground, "[t]he determination of whether the right to counsel has been waived is a question of law that we review de novo." When

United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004).

a defendant raises this type of challenge to a prior conviction, he "bears an especially difficult burden of proving that the conviction was invalid." It counsel is Id. that waiver of one's ac[t] right done to

well-settled be a

"must

`knowing,

intelligent,

with

sufficient awareness of the relevant circumstances.'" 3

Iowa v.

Tovar, 541 U.S. 77, 81 (2004) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)) (alteration in original). context of acceptance of a guilty plea from an In the

uncounseled

defendant, there is no specific warning "mandated by the Sixth Amendment," nor has the Supreme Court "prescribed any formula or script to be read to a defendant who states that he elects to proceed without a counsel." defendant . Id. must . . at 81, 88. in Instead, order on to a "[t]he an of or the

information intelligent case-specific

possess will the

make range

election factors, the

depend

including or

defendant's grasped

education of

sophistication,

complex

easily

nature

charge, and the stage of the proceeding." the Supreme Court has explained is that

Id. at 88. generally, the

However, "[t]he court

constitutional

requirement

satisfied

when

trial

informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Id. at 81. The record demonstrates that Cogdell, a high school graduate who had a number of prior convictions for which he had been represented by counsel, was informed by the state court judge that he was charged with possession with intent to

distribute, that he faced a maximum of fifteen years in prison, and that if he wished to be represented at his plea he was 4

entitled to counsel.

Moreover, the judge expressed his strong

belief that Cogdell should not proceed without counsel, stated that doing so was unwise especially in a criminal proceeding, and told Cogdell that if he wished to reconsider representation, he would be permitted to do so at any time prior to entry of his plea. The transcript of the challenged guilty plea also shows

that the Government recited the factual basis for the charge, to which Cogdell agreed; made clear that it was going to recommend a concurrent two-year sentence; and noted that it had shared all discovery with Cogdell prior to the plea. Finally, the court

warned Cogdell of the rights he was giving up by accepting the plea, reminded him that if he went to trial the Government would bear the burden of proof on the charge, and confirmed multiple times that Cogdell wished to plead guilty. There is nothing in

the record apart from Cogdell's own self-serving statements to demonstrate that Cogdell's waiver was not freely, intelligently, or voluntarily made, or that the circumstances relevant to this particular charge and defendant rendered the waiver involuntary. Therefore, the district court did not err in finding that

Cogdell waived his right to counsel in state court, and in using the resulting conviction to sentence him as a career offender. Accordingly, we affirm the district court's conviction and sentence. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials 5

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

6