United States Court of Appeals
For the First Circuit
No. 06-2354
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER WARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Oberdorfer,* Senior District Judge.
Chauncey B. Wood, with whom Shea, Larocque & Wood, was on
brief, for appellant.
Steven H. Breslow, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, and Randall E.
Kromm, Assistant United States Attorney, was on brief, for
appellee.
February 29, 2008
*
Of the District of the District of Columbia, sitting by
designation.
LIPEZ, Circuit Judge. Focusing on deficiencies in a
state court plea colloquy on the issue of voluntariness,
Christopher Ward challenges on appeal his sentence of 120 months in
prison for several drug-related convictions. Ward argues that his
sentence is unreasonable as a matter of law because the district
court relied on unconstitutional prior state convictions as the
basis for a mandatory sentence enhancement under 21 U.S.C. §
841(b)(1)(A). In assessing this claim, we must consider the
decision of the Supreme Court in Boykin v. Alabama, 395 U.S. 238
(1969), which held that the acceptance of a plea of guilty "must be
based on a 'reliable determination on the voluntariness issue which
satisfies the constitutional rights of the defendant.'" Id. at 242
(quoting Jackson v. Denno, 378 U.S. 368, 387 (1964)). Boykin also
held that "[w]e cannot presume a waiver of these . . . important
federal rights from a silent record." Id. at 243.
After considering Boykin and cases decided in its wake,
we conclude that the record of the state court proceeding in this
case contained sufficient evidence to permit the district court to
find that Ward entered his state plea voluntarily, and hence the
mandatory sentence enhancement applied.
I.
We recite Ward's background from the Presentence Report
prepared in conjunction with his federal sentencing. The facts are
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largely undisputed, and we specifically note where Ward contests
the statement of facts offered in the report.
Ward was born in 1986 to a mother who had been using
cocaine and methadone. Hospital records reveal positive tests for
cocaine, barbiturates, and hepatitis B antibodies on his umbilical
cord. At eighteen months, Ward was adopted by Mary Little, whom he
believes is a relative of his mother. Ward has not remained in
contact with his birth mother, and believes that she died in 2003
from complications related to AIDS; in addition, he does not know
his father. Raised in the Mason Square area of Springfield,
Massachusetts, a low-income neighborhood plagued by violence,
drugs, and gangs, Ward was arrested at age sixteen for receiving a
stolen motor vehicle, a charge that was subsequently dropped by the
authorities.
Seeking to improve his life, Ward used a friend's address
to enroll at a better school, West Springfield High School, and
relied on various means of transportation to attend school. His
true residency was soon discovered by administrators, and he was
forced to leave West Springfield High School prior to completing
the eleventh grade. He has since attempted to complete high
school, but has ultimately failed to do so. Near his eighteenth
birthday, Ward moved out of Mary Little's home and began to live
with friends and acquaintances in the Springfield area. In July
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2004, Ward moved in with Emilia Rodriguez, with whom he now shares
a two-year-old child.
In May 2003, Ward was arrested by the Springfield Police
Department on the drug charges that serve as the basis for the
sentence enhancement Ward challenges in this appeal. Specifically,
on the basis of separate incidents, Ward was charged with several
counts of felony drug possession and distribution, three counts of
drug violation near a school zone or park, and one count each of
resisting arrest and refusing to identify oneself to the police.
In February 2004, Ward and his attorney reached an agreement with
the prosecutors to have the school zone drug violations nol prossed
in return for Ward's plea of guilty to the remaining charges. The
parties did not agree on any sentence recommendation to be offered
to the court. Ward accepted the deal and pleaded guilty to the
charges in the Springfield Division of the Massachusetts State
District Court.
Prior to accepting Ward's plea, the court conducted a
colloquy to determine whether his plea would be entered knowingly
and voluntarily, and if there was a sufficient factual basis for
the plea.
Court: Okay Mr. Ward, how old are you sir?
Ward: Seventeen.
Court: How far have you gone in school?
Ward: I'm in the eleventh grade.
Court: Have you had any alcohol or drugs today that
would in any way interfere with your ability
to understand this matter?
Ward: No.
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Court: Do you suffer from any mental illness,
disease or defect that would in any way
interfere with your ability to understand
this matter?
Ward: No.
Court: Do you understand that you're giving up your
right to a trial by a jury?
Ward: Yes.
Court: You're giving up your right to confront and
cross examine the witnesses against you and
you're giving up the right against self-
incrimination. Do you understand those
rights?
Ward: Yes.
Court: Do you understand that you're giving them up
here today?
Ward: Yes.
Court: Do you understand that if you're not a
citizen of the United States, conviction of
this offense may have consequences with
regard to deportation, exclusion from
admission to the United States or denial of
naturalization? Do you understand that sir?
Ward: Yes.
Court: In other words, if you're not a citizen. . .
this only applies if you're not a citizen of
the U.S., but it would affect your
immigration, naturalization, and deportation
status. Have you had enough time to discuss
this matter with your attorney?
Ward: Yes.
Court: Has he explained to you the elements of the
offense the Commonwealth has to prove
against you?
Ward: Yes.
Court: Are you satisfied that he's given you his
best professional advice?
Ward: Yes.
Court: There are not agreed recommendations; I'm
free to impose whatever penalty I see fit.
But if I should exceed the recommendation
your attorney makes, this is what they were
referring to earlier, I would allow you to
withdraw your admission and go to trial in
front of another judge or jury. Do you
understand that?
Ward: Yes.
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Per the court's request, Assistant District Attorney
Leahy then summarized the facts in the police report. Upon
completion of the recitation, the Court stated the following:
Court: Mr. Ward, you're admitting to four counts of
distribution of cocaine and one count of
distribution of marijuana and one count of
resisting arrest. Correct sir?
West (Ward's attorney): I believe three counts of
distribution of cocaine, Judge.
Leahy: One was possession with intention to
distribute cocaine.
West: Possession with intent.
Court: Okay, thank you. Is that what occurred sir
on those respective dates?
Ward: Yes.
Court: I find that you freely, voluntarily, and
willingly waived your rights and admitted to
sufficient facts in the complaint.
Assistant District Attorney Leahy then gave the Court a
summary of the facts in connection with a separate drug possession
charge and various motor vehicle offenses. Upon completion of the
recitation, the colloquy continued as follows:
Court: Is that what occurred on that date sir?
Ward: Yes.
Court: On this matter I also find that you freely,
voluntarily, and willingly waived your
rights and admitted to sufficient facts.
The Court accepted Ward's plea and sentenced him to one year of
probation.
In addition to and contemporaneously with the colloquy,
Ward, Ward's attorney, and the sentencing judge signed a pre-
printed waiver of rights in connection with the plea hearing. The
document included the disposition of each crime charged against
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Ward and language addressing the constitutional rights Ward waived
by pleading guilty. Additionally, the waiver form included
specific language concerning the voluntariness of the plea. The
relevant portion of the form signed by Ward states:
My guilty plea or admission is not the result of force or
threats. It is not the result of assurances or promises,
other than any agreed-upon recommendation by the
prosecution as set forth in Section I of this form. I
have decided to plead guilty, or admit to sufficient
facts, voluntarily and freely.
In addition, Ward's counsel certified on the form that he had
explained to Ward the consequences of his waiver, "so as to enable
the defendant to tender his or her plea of guilty or admission
knowingly, intelligently and voluntarily." Lastly, the judge
signed the waiver form, attesting that "after an oral colloquy with
the defendant, . . . the defendant has knowingly, intelligently and
voluntarily waived all of his or her rights as explained during
these proceedings and as set forth in this form." The language of
the waiver indicates that the judge signed the form at the
completion of the plea proceeding, although it is unclear whether
Ward and his attorney signed it prior to the proceeding or during
it.
In July 2005, Ward was arrested for selling crack
cocaine on several occasions to an undercover Massachusetts state
trooper. A federal grand jury returned an indictment with two
counts of possession with intent to distribute and distribution of
crack cocaine in violation of 21 U.S.C. § 841(a)(1). In December
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2005, the government filed an information under 21 U.S.C. §
851(a)(1), stating its intent to use Ward's prior state drug
convictions to increase his punishment. Additionally, in March
2006, the government filed a superseding information, alleging
additional charges against Ward. He pleaded guilty to all four
counts in the superseding information.
In May 2006, prior to being sentenced on these federal
charges, Ward filed a motion for a new trial in Springfield
District Court on the 2003-2004 state charges,2 claiming that the
state trial court had failed to comply with Rule 12 of the
Massachusetts Rules of Criminal Procedure and Massachusetts case
law on the requirements for accepting a guilty plea.3 Ward also
alleged in an affidavit submitted to the Springfield District Court
that he did not appreciate the consequences of his guilty plea,
that the court did not explain to him the elements of the crimes to
which he plead, and that neither the court nor his attorney did an
adequate job of explaining his rights to him.4 Ward likewise
2
Under Massachusetts law, a motion for a new trial is the
appropriate way to attack the validity of a guilty plea. E.g.,
Commonwealth v. Colon, 789 N.E.2d 566, 570 (Mass. 2003).
3
Rule 12(c)(5) of the Massachusetts Rules of Criminal
Procedure states that "[t]he judge shall conduct a hearing to
determine the voluntariness of the plea or admission and the
factual basis of the charge."
4
Ward has not raised all of these concerns in this collateral
proceeding. In fact, on appeal, he focuses only on deficiencies in
the state court colloquy on the issue of voluntariness.
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challenged in federal court the government's request for a sentence
enhancement based on these prior state convictions.
On August 8, 2006, the state court denied Ward's motion
and made no findings in support of its decision. The federal
district court held a sentencing hearing after the state court's
denial and concluded that the prior convictions were not impaired
by any constitutional violation. The previous convictions
triggered a mandatory minimum sentence under 21 U.S.C. § 841
(b)(1)(A) of 120 months. Because of U.S.S.G. § 5G1.1(b),5 this
mandatory minimum sentence also became the Guidelines sentence.
Ward was sentenced to 120 months imprisonment on each count, to be
served concurrently. If the enhanced minimum sentence had not
applied, the Guidelines range, according to the PSR, would have
been 57 to 71 months, and the mandatory minimum sentence would have
been 60 months rather than 120 months. The court additionally
sentenced Ward to eight years of supervised release.
Ward now appeals the sentence, asserting that the
district court committed reversible error by denying his motion to
exclude the prior state court convictions as the basis for a
sentence enhancement pursuant to 21 U.S.C. § 851. Specifically, he
contends that the state court record did not contain sufficient
evidence to permit the district court to find that he entered his
5
United States Sentencing Guidelines § 5G1.1(b) states that
"[w]here a statutorily required minimum sentence is greater than
the maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence."
-9-
guilty plea to the state charges voluntarily.6 Ward asks us to
vacate his sentence and order his resentencing by the district
court without consideration of the invalid state court convictions.
II.
The federal enhancement statute upon which the government
relied, 21 U.S.C. § 851, sets forth the procedures for using prior
convictions as sentence enhancements. The statute also permits
defendants to contest the validity of a prior conviction to prevent
it from serving as the basis for an enhanced sentence. For
constitutional challenges, a defendant must "file a written response
to the information" that "set[s] forth his claim, and the factual
basis therefor, with particularity . . . ." Id. § 851(c)(1)-(2);
see Custis v. United States, 511 U.S. 485, 491 (1994) (highlighting
Congress's intent in 21 U.S.C. § 851(c) to allow challenges to the
validity of a prior conviction used to enhance a federal drug
offense sentence). After receiving the defendant's response, the
court "shall hold a hearing," at which either party may produce
6
Although we acknowledge that the question of whether a
guilty plea is voluntary may implicate the related questions of
whether the defendant had knowledge of the crimes charged, the
consequences of his plea, and the constitutional rights he was
waiving, we define "voluntariness" for purposes of this opinion to
include only the requirement that a plea be a free and deliberate
act that is not compelled or induced by force, coercion, threats,
or undue promises. See Boykin, 395 U.S. at 243 (quoting McCarthy
v. United States, 394 U.S. 459, 466 (1969)). Also, both parties
have conceded on appeal that other constitutional requirements
apart from voluntariness so defined have been satisfied in this
case.
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evidence, "to determine any issues raised by the response which
would except the person from increased punishment." 21 U.S.C. §
851(c)(1). For constitutional challenges, the defendant has the
burden to prove all issues of fact raised by the response by a
preponderance of the evidence. Id. § 851(c)(2).
Based solely on the state court record of the plea
proceeding, with no additional evidence bearing on the voluntariness
of Ward's plea offered by either party, the district court found
that "the record from the transcript [was] more than adequate to
support the voluntariness and all of the other criteria that is
attached to a plea proceeding." We review this legal determination
de novo.7 See Marshall v. Lonberger, 459 U.S. 422, 431 (1983)
("[T]he governing standard as to whether a plea of guilty is
voluntary for purposes of the federal Constitution is a question of
federal law . . . and not a question of fact . . . ."); see also
United States v. Walker, 160 F.3d 1078, 1095-96 (6th Cir. 1998)
("[T]he ultimate question whether a plea was voluntary requires a
legal conclusion.").
III.
In Boykin v. Alabama, an African-American defendant was
indicted on five counts of common law robbery for a series of armed
robberies that occurred in Mobile, Alabama. Three days after Boykin
7
The district court engaged in no independent fact-finding in
reaching its conclusion on the constitutionality of Ward's plea.
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received appointed counsel, he was arraigned and pleaded guilty to
all of the charges. He was sentenced to death on each of the
counts. The record of the proceeding revealed that "the judge asked
no questions of petitioner concerning his plea, and [the] petitioner
did not address the court." Boykin, 395 U.S. at 239. On appeal
from the Alabama Supreme Court, which had upheld on a 4-3 vote the
constitutionality of defendant's plea, the United States Supreme
Court reversed the decision and concluded that "[i]t was error,
plain on the face of the record, for the trial judge to accept
petitioner's guilty plea without an affirmative showing that it was
intelligent and voluntary."8 Id. at 242. The Court reached this
decision despite petitioner Boykin's silence in front of the Alabama
Supreme Court and in his petition and brief to the Supreme Court as
to whether the plea was, in fact, unknowing and involuntary. See
id. at 246 (Harlan, J., dissenting) ("In [Boykin's] petition and
brief in this Court, and in oral argument by counsel, petitioner has
never asserted that the plea was coerced or made in ignorance of the
consequences.").
With scant recognition of its dual audience, Boykin
simultaneously speaks to judges who accept guilty pleas and judges
who later review challenges to the constitutional adequacy of those
8
To satisfy the requirements of due process, it has been long
established that a guilty plea must in fact be knowing,
intelligent, and voluntary. See, e.g., McCarthy, 394 U.S. at 466
("[I]f a defendant's guilty plea is not equally voluntary and
knowing, it has been obtained in violation of due process and is
therefore void.").
-12-
pleas, either on direct appeal or in collateral proceedings.9
Boykin reminds trial judges that a defendant's plea of guilty "must
be based on a 'reliable determination on the voluntariness issue
which satisfies the constitutional rights of the defendant.'" Id.
at 242 (quoting Denno, 378 U.S. at 387). Boykin reminds judges
reviewing challenges to the constitutional adequacy of a plea
proceeding that due process requires that the record of the
proceeding contain sufficient evidence to support the trial court's
decision to accept the plea.10 Id. at 243 ("We cannot presume a
waiver . . . from a silent record."); see Brady v. United States,
397 U.S. 742, 747 n.4 (1970) ("The new element added in Boykin was
the requirement that the record must affirmatively disclose that a
defendant who pleaded guilty entered his plea understandingly and
voluntarily.").
Given this new element, with its focus on the adequacy of
the record that memorializes the plea proceeding, the fact of
voluntariness cannot be inferred by a reviewing court from a silent
9
Boykin has been the subject of sharp criticism. One judge
has noted that "[t]he Supreme Court's decision in Boykin v. Alabama
demonstrates the mess that can result from failure to identify the
holdings of a meandering opinion which makes assertions on
questions not before the court." Pierre N. Leval, Judging Under
the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1269
(2006).
10
In reaching this conclusion, the Court extended to the
guilty plea setting its holding in Carnley v. Cochran, 369 U.S.
506, 516 (1962), that due process requires a record showing of
defendant's decision to waive his right to counsel. See Boykin,
395 U.S. at 242.
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or otherwise inadequate record. Instead, due process requires that
there be an "affirmative showing" in the record to support that
determination. Boykin, 395 U.S. at 242; see Hanson v. Phillips,
442 F.3d 789, 801 (2d Cir. 2006) ("It may well be that [the
defendant], in fact, understood his alternatives, but we are unable
to conclude so based on this record, and it is the trial court's
responsibility to ensure 'a record adequate for any review that may
be later sought.'" (quoting Boykin, 395 U.S. at 244)). Indeed, the
Supreme Court highlighted in Boykin the importance of maintaining
an adequate record for the appeals process. Id. at 244 ("When the
judge [ensures a plea is knowing and voluntary], he leaves a record
adequate for any review that may be later sought, and forestalls the
spin-off of collateral proceedings that seek to probe murky
memories.") (citations omitted).
Despite Boykin’s requirement of an "affirmative showing"
in the record that a plea was knowing and voluntary, Boykin does not
address the contours of that showing. In arguing that the record
of the state plea proceeding was inadequate, Ward takes his cue from
Justice Harlan’s dissent in Boykin. See 395 U.S. at 245 ("The Court
thus in effect fastens upon the States, as a matter of federal
constitutional law, the rigid prophylactic requirements of Rule 11
of the Federal Rules of Criminal Procedure."). He suggests that the
contours of the Boykin showing are defined (that is,
constitutionalized) by the requirements of Federal Rule of Criminal
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Procedure 11.11 To this end, he cites the Supreme Court's decision
in McCarthy, which states that Rule 11's more strict colloquy
requirements can help "reduce the great waste of judicial resources
required to process the frivolous attacks on guilty plea convictions
that are encouraged, and are more difficult to dispose of, when the
original record is inadequate." 394 U.S. at 472.
Supreme Court decisions contemporaneous with Boykin
preclude any argument that Boykin constitutionalized Rule 11. Two
months prior to Boykin, the Supreme Court stated that "the procedure
embodied in Rule 11 has not been held to be constitutionally
mandated." McCarthy, 394 U.S. at 465 (rejecting a guilty plea
because a district judge had failed to comply with the requirements
11
At the time Boykin was decided, Rule 11 consisted of four
sentences:
A defendant may plead not guilty, guilty or, with the
consent of the court, nolo contendere. The court may
refuse to accept a plea of guilty, and shall not accept
such plea or a plea of nolo contendere without first
addressing the defendant personally and determining that
the plea is made voluntarily with understanding of the
nature of the charge and the consequences of the plea.
If a defendant refuses to plead or if the court refuses
to accept a plea of guilty or if a defendant corporation
fails to appear, the court shall enter a plea of not
guilty. The court shall not enter a judgment upon a plea
of guilty unless it is satisfied that there is a factual
basis for the plea.
Fed. R. Crim. P. 11. Since 1969, Rule 11 has been amended on
numerous occasions, each time placing different or additional
obligations on the federal courts. Most notably, the Rule was
amended in 1974 in response to the Boykin decision to require
courts to more specifically identify the constitutional rights that
are relinquished pursuant to a guilty plea. Fed. R. Crim. P. 11
advisory committee's notes (1974 amendments).
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of Fed. R. Crim. P. 11).12 The Court confirmed the non-
constitutional nature of its holding in McCarthy one month later,
noting that it was based "solely upon the application of Rule 11 and
not upon constitutional grounds." Halliday v. United States, 394
U.S. 831, 832 (1969). In deciding not to impose the Rule 11
requirements retroactively, the Court in Halliday let stand a plea
that we had ruled contained "'ample evidence' support[ing] the . .
. finding that the Government had met its burden of demonstrating
that petitioner entered his plea voluntarily with an understanding
of the nature of the charges against him," even though the plea did
not comply with Rule 11. Id. at 832; see, e.g., Stewart v. Peters,
958 F.2d 1379, 1384 (7th Cir. 1992) ("The Constitution does not
enact Rule 11 of the Federal Rules of Criminal Procedure . . . .");
Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972) ("[W]e do not
find in Boykin v. Alabama . . . a rule fastening the 'rigid
prophylactic requirements of Rule 11' of the Federal Rules of
Criminal Procedure upon the states.").
12
In McCarthy, the district court had failed to comply with
the requirements of Fed. R. Crim. P. 11 by not "'first addressing
[the defendant] . . . personally and determining that the plea
[was] . . . made voluntarily with understanding of the nature of
the charge . . . ,' and (2) . . . enter[ing] judgment without
determining 'that there [was] . . . a factual basis for the plea.'"
394 U.S. at 462 (quoting Fed. R. Crim. P. 11). Because of this
deficiency, the Supreme Court held that the defendant was entitled
to plead anew; the Court rejected the government's request that the
case be remanded for an additional evidentiary hearing to show that
McCarthy's plea was knowing and voluntary. Id. at 464.
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Even if Boykin did not constitutionalize Rule 11, it
unmistakably held that a trial court must produce a record adequate
for a reviewing court to conclude that the constitutional
requirements of a plea have been met. See Hanson, 442 F.3d at 800
("While we recognize that no particular form or script is required
and that state courts have considerable leeway to establish a record
in whatever reasonable manner they see fit, Boykin established that
the record of a guilty plea must affirmatively disclose that the
defendant made his plea intelligently and voluntarily."). Such a
record may consist of a defendant's explicit answers during the plea
colloquy to inquiries concerning the defendant's understanding of
the nature of the charges, the consequences of pleading guilty to
the charges, and the rights being waived. That plea colloquy might
be supplemented by the completion of a printed waiver form that also
addresses the constitutional elements of a plea. A specific script,
a set of magic words, or even certain types of inquiries are not
required.13 See, e.g., Siegel v. New York, 691 F.2d 620, 626 (2d
13
What Boykin requires is different in kind than what Miranda
requires, although both serve similar prophylactic functions to
protect constitutional rights. See Adams v. Peterson, 968 F.2d
835, 846 (9th Cir. 1992) (Kozinski, J., concurring) ("Like Miranda
. . . , Boykin concentrates on providing additional, bright-line
protection for enumerated constitutional guarantees -- namely, the
rights to trial by jury, to confront one's accusers and to be free
from compulsory self-incrimination -- and thereby travels one step
beyond the specific requirements of the Constitution."). The
protection Boykin offers, however, is less bright than that imposed
by Miranda. Whereas Miranda requires a precise script to protect
a defendant’s right against self-incrimination, Boykin does not
mandate that a judge adopt specific procedures to create an
adequate record, or that the record contain specific, indispensable
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Cir. 1982) ("Rather than mandating a specific catechism, in
determining voluntariness and intelligence, due process requires
only that the courts provide safeguards sufficient 'to insure the
defendant what is reasonably due in the circumstances.'" (quoting
Santobello v. New York, 404 U.S. 257, 262 (1971))); see also Leval,
supra, at 1272 n.71 (citing numerous cases for the proposition that
Boykin, despite language in the opinion, did not require an oral
colloquy to explicitly demonstrate waiver of the three specific
constitutional rights addressed in the opinion).
With this understanding of Boykin in mind, we assess
whether the district court concluded correctly that the record of
Ward’s state court proceeding was "more than adequate to support"
the finding that Ward entered his state plea voluntarily.
IV.
In deciding whether there is an affirmative showing of
voluntariness in the state court record of Ward's plea, we examine
the totality of the circumstances surrounding the plea. Brady, 397
U.S. at 749 ("The voluntariness of Brady's plea can be determined
only by considering all of the relevant circumstances surrounding
it."). We are not limited to reviewing the transcript of the
colloquy alone, as the district court appears to have done, but may
also consider the other materials and documents that comprise the
elements. Boykin is satisfied so long as the record is sufficient
to allow a reviewing court to conclude that the defendant's plea
was constitutional.
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record as a whole. See United States v. Vonn, 535 U.S. 55, 74
(2002) (finding that a court is not limited to the record of the
plea proceeding in determining whether a Rule 11 violation affects
defendant's substantive rights); Hanson, 442 F.3d at 799 (making a
Boykin determination by examining "the record as a whole").
The parties acknowledge on appeal that the state court
record supports a determination that Ward (1) had an understanding
of the charges against him; (2) was aware of the consequences of his
guilty plea; and (3) was competent to make such a plea. They
contest, however, whether the state court record contains sufficient
evidence to permit the district court to find that he entered his
guilty plea to the state charges voluntarily, free of coercion,
force, threats, or undue promises. Ward contends that the plea was
constitutionally deficient because the state court never inquired
generally whether his plea was a free and voluntary act, nor
specifically whether it was the product of coercion, undue promises,
or threats. Additionally, he argues that neither the presence of
counsel on his behalf nor the signed waiver form remedy the
deficiencies in the plea colloquy. Finally, he claims that his age
and unfamiliarity with the plea process provide additional support
for vacating the district court's sentencing decision, with its
reliance on the state court convictions.
The government responds that the district court was
correct to reject Ward's claim of unconstitutionality.
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Acknowledging that the state court failed to explicitly address in
its colloquy whether Ward's plea was a free and voluntary act, the
government nonetheless asserts that, based on the totality of the
circumstances surrounding the plea, the record was sufficient to
support the district court’s voluntariness determination.
Specifically, it argues that the text of the colloquy engaged in by
the court and Ward, the presence of adequate counsel on Ward's
behalf, and the written waiver signed by Ward, his attorney, and the
presiding judge, offer adequate support for the district court's
determination that the plea was entered voluntarily.
We agree with the government that the record supports the
district court's inference that Ward's plea was freely and
voluntarily entered. In reaching this conclusion, we rely on the
waiver form signed by Ward contemporaneously with the plea
proceeding, the factual circumstances surrounding the plea, the text
of the colloquy itself, which contains no evidence suggesting that
Ward's actions were the product of any force, coercion, undue
promises, or threats, and Ward's failure to supply evidence of such
influences to the district court, as he was entitled to do.14
14
As set forth in 21 U.S.C. § 851(c), a defendant may offer
evidence to challenge the constitutionality of a conviction invoked
by the government to enhance a federal drug sentence. See, e.g.,
United States v. Jackson, 121 F.3d 316, 319 (7th Cir. 1997)
("[Section] 851 was enacted [] to insure that defendants are given
reasonable notice and an opportunity to be heard, which includes
the opportunity to contest the evidence or challenge a prior
conviction if the defendant might be subject to a greater sentence
than would otherwise be imposed.").
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In the presence of the trial court and Ward's counsel,
Ward signed a waiver form addressing his rights. The form stated
that Ward’s guilty plea "[was] not the result of force or threats
. . . [nor] the result of assurances or promises, other than any
agreed-upon recommendation by the prosecution." By signing the
form, Ward also attested that he had "decided to plead guilty . . .
voluntarily and freely." Given Ward's education level –- he was in
eleventh grade at the time of the plea proceeding –- and ability to
respond appropriately to the judge during the colloquy, there is no
reason on this record to question his ability to understand the
written waiver and the consequences of his decision to sign it.15
The signature of Ward's counsel follows Ward's and affirms that he
explained to Ward "his waiver of jury trial and other rights so as
to enable [him] to tender his plea of guilty . . . knowingly,
intelligently, and voluntarily." Finally, the trial judge's
15
In his affidavit submitted to the Springfield District Court
requesting a new trial, and in his response to the government's
notice to pursue a penalty increase under 21 U.S.C. § 851(a)(1),
Ward states that he did not appreciate the consequences of his
guilty plea, and that the court did not explain to him the rights
he was waiving by pleading guilty. Ward's own responses to
explicit questions in the colloquy, however, contradict these
assertions. When explicitly told by the state trial judge that he
was giving up the right to a trial by jury, the right to confront
and cross-examine witnesses and the right against self-
incrimination, Ward responded that he understood those rights and
that he was giving them up by pleading guilty. Ward has not
submitted any other evidence in the course of these collateral
proceedings to support his assertions that he did not understand
the consequences of his guilty plea and the rights he was waiving.
Indeed, on appeal, Ward has only contested whether the state court
record is adequate to support the district court's determination
that his plea was entered voluntarily.
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signature attests that he found "after an oral colloquy with the
defendant, that [Ward] has knowingly, intelligently, and voluntarily
waived all of his rights as explained during [the plea] proceedings
and as set forth in this form."16
The text of the plea proceeding offers additional support
for our conclusion. The record of the plea does not suggest that
Ward was impaired in any manner that would impede his ability to
understand or respond to the questions posed by the judge. Ward did
not hesitate when acknowledging the rights he was waiving or when
admitting to the factual basis of the crimes he was charged with
committing. He never asked the judge to repeat a question or
statement. Also, Ward never halted the colloquy to pose a question
to his attorney or seek his advice on any matter. Neither Ward nor
his counsel objected or otherwise responded when the trial judge,
on all charges, found that Ward had "freely, voluntarily, and
willingly waived [his] rights and admitted to sufficient facts."
Ward cites his age and inexperience in the criminal
justice system to support his claim that the plea colloquy was
inadequate on the voluntariness issue. These factors would be more
relevant if Ward was claiming that the plea colloquy was deficient
in its explanation of the nature of the charges, the constitutional
16
We do not suggest that a written waiver alone can take the
place of a verbal colloquy between the court and a defendant.
Additionally, some jurisdictions use more comprehensive waiver
forms to assist them in satisfying the constitutional obligations,
including requiring detailed and/or hand-written responses to
questions posed. That seems a sensible practice.
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rights being waived, or the consequences of the plea. Such
explanations at the plea hearing itself are essential to a knowing
plea. Age and inexperience seem less relevant to the issue of
voluntariness in the absence of any evidence of external factors,
such as force, coercion, threats, or undue promises. As we have
indicated, the record of the state court proceeding does not suggest
the presence of any such factors, and Ward did not introduce any
evidence of such factors in this collateral proceeding. Also, so
far as we can tell from this record, and as Ward acknowledged in the
plea colloquy, Ward was represented by competent counsel throughout
the state proceeding.17 Such representation is an important factor
in the voluntariness analysis, and it supports the district court's
determination. See North Carolina v. Alford, 400 U.S. 25, 31 (1970)
(noting that a plea is more likely the product of a free and
rational choice where the defendant has the benefit of competent
counsel); Sophanthavong v. Palmateer, 378 F.3d 859, 876 (9th Cir.
2004) (Ferguson, J., dissenting) (noting the heightened role
competent counsel plays in the context of a juvenile making a plea).
17
The Court asked Ward three questions regarding his counsel
and their discussions. First, Ward was asked whether he "had
enough time to discuss this matter with [his] attorney?" Next, he
was asked whether his counsel "ha[d] explained to [him] the
elements of the offense the Commonwealth ha[d] to prove against
[him]?" Finally, the court asked Ward whether he was "satisfied
that [his attorney] has given his best professional advice?" Ward
answered "yes" to each of the questions.
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V.
Boykin requires that the record of a guilty plea contain
an affirmative showing that there was a voluntary waiver by the
defendant of his constitutional rights. Although compliance with
a state version of Rule 11 in a state plea proceeding will almost
surely constitute such an affirmative showing, see Fed. R. Crim. P.
11, Boykin does not constitutionalize Rule 11 for state plea
proceedings. Moreover, although specific attention to the issue of
voluntariness in any plea proceeding is highly desirable, there is
no specific script that must be followed. Instead, in a collateral
proceeding under 21 U.S.C. § 851(c), where there is a constitutional
challenge to the voluntariness of a state court plea, the district
court can examine the totality of the circumstances surrounding the
plea.
Although the plea colloquy between the state trial court
and Ward did not contain specific questions addressing the voluntary
nature of Ward's plea, all of the relevant circumstances -- the
detailed colloquy between the court and Ward on issues other than
voluntariness, the clarity and directness of Ward's responses, the
involvement of effective counsel on Ward's behalf throughout the
proceedings, the written waiver signed by Ward, his counsel, and the
court, and the failure of Ward to produce any evidence of force,
coercion, threats, or undue promises -- convince us that the
district court ruled correctly that the state court record permits
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an inference that Ward entered his guilty plea to the state charges
voluntarily. Put another way, the record of the state proceedings
includes the affirmative showing required by Boykin that Ward's plea
was entered voluntarily. Given this showing, the district court was
entitled to impose a sentence that included the statutory
enhancement.
Affirmed.
- Concurring Opinion Follows -
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OBERDORFER, J., concurring. The majority amply
establishes that the state-court record affirmatively showed that
Ward’s plea entered here was voluntary and legal. I write simply
to register my discomfort with the heavy sentences of imprisonment
(most recently 10 years mandatory) beginning when he was a 17-year-
old victim of a flagrantly poisonous environment. Hopefully, the
efforts of insightful leaders such as the members of the bipartisan
Commission on Safety and Abuse in America’s Prisons (co-chaired by
former United States Attorney General Nicholas de B. Katzenbach and
the Honorable John Gibbons, former Chief Judge of the United States
Court of Appeals for the Third Circuit), will lead to significant
improvements in the federal prison environment, including physical,
psychological and educational opportunities for young, disadvantaged
inmates like Ward. See Commission on Safety and Abuse in America’s
Prisons, Confronting Confinement, at iii (2006) (“A year ago, a
group of individuals with little in common promised to recommend
strategies for operating correctional facilities that serve our
country’s best interests and reflect our highest values. Today, we
speak in a single voice about the problems, our nation’s ability to
overcome them, and the risks for all of us if we fail to act.”).
Should these services materialize and bear fruit in Ward’s case, it
would behoove his counsel and his probation officer to pursue
executive clemency for Ward before it is too late — if it is not
already.
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