Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2125
UNITED STATES,
Appellee,
v.
DAVID SANFORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Barry S. Pollack, Jill Brenner Meixel and Donnelly, Conroy &
Gelhaar, LLP, on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on Motion for Summary Disposition for
appellee.
December 28, 2005
Per Curiam. Pursuant to a plea agreement, appellant, David
Sanford, Jr., pleaded guilty to conspiracy to interfere with
commerce by robbery, possession of a stolen firearm, felon in
possession of a firearm, and possession of a controlled substance
with intent to distribute. He now challenges both his conviction
and sentence.
Appellant's primary argument is that his guilty plea was
involuntary because he ingested three medications for depression
and psychosis on the morning he entered his plea. This claim has
been raised for the first time on appeal, so we review for plain
error. See United States v. Serrano-Beavaix, 400 F.3d 50, 53 (1st
Cir. 2005). As the district judge was made aware of appellant's
ingestion during the hearing, the judge was obligated to conduct a
more searching inquiry into the contemporaneous effects of the
medication on his ability to render a knowing and intelligent plea.
Miranda-Gonzalez v. United States, 181 F.3d 164, 166 (1st Cir.
1999). The district judge satisfied his duty: he asked appellant
on four separate occasions whether he understood the nature of the
proceedings, and each time appellant assured the court of his
ability to comprehend the proceedings. Appellant also appeared
lucid, confirming his own assurances of competency. Accordingly,
the involuntariness claim fails.
For the same reasons, we find no impediment to concluding that
appellant effectively waived his appellate rights during the Rule
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11 colloquy. After reviewing the Rule 11 transcript in its
entirety, we conclude that the district judge took pains to explain
that his right to appeal is circumscribed by his plea agreement,
which includes a waiver of appeal provision clearly providing that-
-subject to an exception discussed below--appellant waives his
right to appeal or to challenge his conviction and sentence
collaterally. See United States v. Teeter, 257 F.3d 14, 25-26
(1st Cir. 2001). We see no miscarriage of justice in enforcing the
provision.
However, we will assume, without deciding, that the exception
to the appeal waiver provision renders the waiver inapplicable to
appellant's claims pursuant to United States v. Booker, 543 U.S.
220 (2005) and pursuant to Shepard v. United States, 125 S. Ct.
1254 (2005). See United States v. Taylor, 413 F.3d 1146, 1151-52
(10th Cir. 2005) (construing a similarly worded exception to an
appeal waiver to permit a direct appeal on Booker grounds). Even
on that assumption, the appellant does not profit.
As to the Booker claim, appellant argues that the appropriate
standard of review is harmless error. We disagree. Although the
sentencing judge sua sponte concluded that Blakely v. Washington,
542 U.S. 296 (2004), was inapplicable to appellant's sentence,
appellant neither objected to the judge's conclusion, claimed that
the guidelines were unconstitutional, nor otherwise raised any
error under Blakely or Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Thus, the error was not preserved. See United States v. Martins,
413 F.3d 139, 153 (1st Cir. 2005). Accordingly, we apply the plain
error standard of United States v. Antonakopoulos, 399 F.3d 68, 75
(1st Cir. 2005), which requires appellant to "point to
circumstances creating a reasonable probability that the district
court would impose a different sentence more favorable to the
defendant under the 'advisory Guidelines' Booker regime."
Appellant's primary claim is that there exist mitigating
circumstances that the mandatory guidelines either prohibited or
discouraged the sentencing judge from considering when he devised
the sentence. In particular, appellant points to the numerous
sympathetic circumstances he described in his sentencing hearing
allocution. He does not bother in his brief, however, to explain
how the guidelines minimized the impact of each (or any) of these
circumstances. Upon review of the guidelines, it is apparent that,
at most, a small fraction of these circumstances were prohibited
from consideration for downward departure and may have led the
judge to feel that he could not fully consider them when sentencing
within the guidelines range. This attenuated possibility surely
does not establish a reasonable probability in light of the judge's
comments during sentencing. The sentencing judge stated that "the
20-year sentence, as harsh as it is, is necessary to protect
society and other people from you and to protect you from
yourself." The judge's clear satisfaction with the sentence and
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the fact that he selected a point in the middle of the range are
sufficient to enable us to conclude that appellant has not
sustained his burden. See, e.g., United States v. Baskin, 424 F.3d
1, 4-5 (1st Cir. 2005). For the same reasons, we are not persuaded
by appellant's argument that the judge would on remand more fully
consider that appellant's codefendant, who played a more crucial
role in the crime, received a less substantial sentence.
As to appellant's Shepard claim, he argues that the district
court erred when, at sentencing, it relied on incompetent evidence
of prior offenses. Even assuming that the Shepard claim survived
the waiver of appellate rights provision in the plea agreement, it
is nevertheless waived for different reasons. Appellant stipulated
elsewhere in his plea agreement to the fact that he was an armed
career criminal. Though Shepard articulated a new rule for the
manner in which judges can conclude that a defendant has armed
career criminal status, appellant accepted the risk that a
favorable change in the law would occur after he entered his plea.
See United States v. Sahlin, 399 F.3d 27, 31-32 (1st Cir. 2005).
In addition, he raised an initial objection as to the factual
predicates for the armed career criminal enhancement and later
withdrew it. Lastly, he failed to object to any of the judge's
fact-finding in connection with the latter's conclusion that the
armed career criminal enhancement applied. Accordingly, he has
waived his Shepard claim. See Sahlin, 399 F.3d at 31-32; United
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States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
Lastly, appellant maintains that "[t]he record reflects
inadequate access between [him] and his trial attorney."
Generally, claims of ineffective assistance of counsel must
originally be presented to the district court as a collateral
attack under 28 U.S.C. § 2255. United States v. Colon-Torres, 382
F.3d 76, 84 (1st Cir. 2004). As the record in this case is
insufficiently developed, this case does not fall into the
exception to the general rule. See id.
Accordingly, we grant the government's motion for summary
disposition. See 1st Cir. R. 27(c). We therefore affirm the
conviction and sentence.
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