United States v. Vaughn

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4519

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

TARIQ A. VAUGHN,

Defendant – Appellant.

No. 09-4565

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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-cr-
00468-HEH-1; 3:02-cr-00075-RLW-1)

Submitted: August 5, 2010 Decided: September 16, 2010

Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
No. 09-4519 dismissed; No. 09-4565 affirmed by unpublished per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Unpublished opinions are not binding precedent in this circuit.

2
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 of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (2006).

Vaughn plead guilty and was sentenced to 240 months’

imprisonment. At the same time he was sentenced on the

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.

3
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. The motion will be granted.

A defendant may waive the right to appeal if that

waiver is knowing and intelligent. United States v.

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. United States v. Blick,

408 F.3d 162, 168 (4th Cir. 2005). To determine whether a

waiver is knowing and intelligent, this court examines “the

totality of the circumstances.” United States v. 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

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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 declarations in court affirming a plea agreement

“present a formidable barrier in any 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. Because Vaughn’s plea was knowingly and

intelligently given, 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 explain his within-guidelines sentence for his

supervised release violation. This court generally reviews

sentences imposed upon revocation of supervised release to

determine whether: (1) they are within the prescribed statutory

range; and (2) they are “plainly unreasonable.” United

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

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.” See United States

v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). It is

undisputed that Vaughn failed to lodge a contemporaneous

objection to the district court’s explanation; thus, the

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. These vague statements are

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insufficient to preserve an objection to the adequacy of the

district court’s explanation. As was the case in United

States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010), where

defendant Avery Peake failed to “ask the court to depart from

the correctly calculated Guidelines range,” Vaughn is not

entitled to a full appellate review of this issue. 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). Even if he

makes this three-part showing, this court may 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).

Vaughn has failed to meet this burden. Accordingly, we affirm

the sentence imposed upon Vaughn following his supervised

release violation.

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We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

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