[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 28, 2006
No. 05-12572
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00334-CR-SLB-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEANGELO D. THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 28, 2006)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Deangelo D. Thomas appeals his convictions and 235-month sentences for
assaulting a Deputy United States Marshal and inflicting bodily injury on him with
use of a deadly and dangerous weapon and for being a felon in possession of a
firearm. Because the district court did not plainly err when it found that Thomas’
plea was made knowingly and voluntarily and did not clearly err when it found
that he was competent to enter his plea, we affirm his convictions. Thomas’ valid
appeal waiver forecloses the sentencing issues he raises. Therefore, we dismiss
his sentencing appeal.
I.
In a superseding indictment, Thomas was charged with one count of assault
of a Deputy United States Marshal and infliction of bodily injury with use of a
deadly and dangerous weapon (an automobile) in violation of 18 U.S.C. §
111(a)(1), (b); two counts of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1); and one count of possession of
ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1).
Thomas filed a motion for a psychiatric evaluation to determine his mental
competency to understand the proceedings against him and to determine whether
he was mentally competent at the time of the alleged offense. The magistrate
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judge granted that motion and ordered Thomas to be examined by a forensic
psychologist, Dr. Kimberly Svec Ackerson.
Dr. Ackerson’s report stated that Thomas communicated clearly and was
pleasant and respectful during the examination. During the course of the
examination, Thomas took a verbal IQ test, and his score was extremely low.
Based on discussion and interaction with Thomas, Dr. Ackerson concluded that
despite the results of the test, his verbal intellectual function was actually in the
low to borderline range, which was consistent with Thomas’ statements that he
had been enrolled in special education classes when he attended school and that he
had limited academic experience.
Dr. Ackerson determined that Thomas had never suffered from a serious
mental illness and that he did not meet the criteria for mental retardation. In terms
of his competency to stand trial, Dr. Ackerson concluded that Thomas
demonstrated a satisfactory understanding of the primary charge against him and
that he appeared aware of the seriousness of the situation. She also concluded that
Thomas had an adequate understanding of basic court-related procedures and that
at the time he committed the alleged offense, he was able to understand right from
wrong and could appreciate the nature of his conduct.
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In a written plea agreement, Thomas pleaded guilty to Count One (assault
and infliction of bodily injury) and Count Two (felon in possession of a firearm)
of his indictment. The plea agreement contained a sentence appeal waiver, which
permitted Thomas to appeal his sentence only on these grounds: (1) a sentence
imposed in excess of the statutory maximum; (2) a sentence that constituted an
upward departure from the guidelines sentencing range as determined by the court
at the time the sentence was imposed; and (3) a claim of ineffective assistance of
counsel. Thomas initialed the appeal waiver provision and signed in the signature
block for the entire plea agreement. Thomas also initialed a Blakely appeal waiver
provision, but during the plea colloquy that provision was struck from the
agreement because Thomas did not understand it.
At the plea hearing, the district court initially noted that a psychologist had
found Thomas competent and able to assist his defense counsel at trial. When
questioned about Thomas’ mental ability or competence to enter a plea, Thomas’
counsel responded that Thomas understood the basic elements of the charges
against him, that he understood he was on trial, and that he had helped to prepare
his the case for trial. Defense counsel also stated that Thomas did not understand
certain legal concepts pertaining to statutory minimums in relation to the felon in
possession of a firearm charge and that he did not understand aspects of the
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distinction between the charge for possessing a firearm and for possessing
ammunition. Based on that, Thomas’ counsel told the court that “there are
concepts in trying to reach a plea agreement that my client simply doesn’t
understand.” Plea Colloquy Tran. at 3. He emphasized that Thomas had trouble
understanding sentencing issues, but when the court asked whether Thomas was
competent to enter a guilty plea, he responded that “[i]f we reached an agreement,
I think that he can enter a plea.” Id. at 5.
The district court explained to Thomas that no one could guarantee what
minimum sentence would apply, but after hearing about Thomas’ prior
convictions, the court’s “best guess” was that a fifteen year minimum sentence
probably would apply to him. Id. at 7. The court gave Thomas ten minutes to
discuss with his attorney whether he wanted to go to trial or to enter a guilty plea.
After conferring with counsel, Thomas said that he wanted to go forward with his
guilty plea.
Thomas’ counsel explained to the court that he had tried to help Thomas
understand a provision in the plea agreement that waived his right to raise on
appeal any constitutional challenges to the validity of the sentencing guidelines
based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
According to counsel, however, because of his low IQ, Thomas could not
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understand those sentencing issues. After discussing the matter with Thomas, the
court determined that the Blakely provision should be deleted from the plea
agreement, and the government agreed to its removal. The court questioned
Thomas about the other details of the sentence appeal waiver and found that
Thomas understood them. His attorney confirmed that Thomas had knowingly
and voluntarily agreed to the appeal waiver as revised. Thomas had initialed those
provisions in the written plea agreement.
The court reiterated to Thomas that he did not have to plead guilty and that
he was entitled to a jury trial if he chose not to plead. Then the following
exchange occurred:
THOMAS: I’m just trying to make sure that I don’t get
over 15 years. That’s what I was getting at.
THE COURT: Well, now, you can’t do that, because
that’s the minimum sentence you’re facing is 15 years. If
that enhancement applies, you are facing up to a life
sentence. There’s no way [your attorney] can guarantee
to you today, and I can’t guarantee you today and the
government can’t guarantee that you’ll get not more than
15 years.
Now, what they’re recommending in the plea agreement
is 15 years. That’s what they’re recommending to me,
but it’s the judge who makes the final decision as to an
appropriate sentence. I don’t have to accept the
government’s recommendation[.] Do you understand?
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THOMAS: Yes, ma’am. Let’s go to trial. I can’t—let’s
go to trial. I got to go—
THE COURT: Now, wait a minute. You can’t talk to
your family right here. You can talk to your lawyer now,
but you can’t talk to your family.
Now, you can talk to your lawyer a little bit more today,
but let me just say this: In any plea, there’s no way a
lawyer can guarantee a defendant the sentence they’re
going to get. Now the government is recommending a
15 year sentence, but that doesn’t mean I have to accept
it. That’s all I can tell you. I mean, I may accept it. I
may not accept it.
Plea Colloquy Tran. at 25–26.
Following that exchange, the court had a sidebar discussion with the
attorneys outside of Thomas’ presence. The court offered to let Thomas speak
with his family if that would help, and the court explained that it did not want to
push Thomas, but “[o]bviously, I would rather it be a plea.” Id. at 27. Thomas’
attorney responded that Thomas was “just scared” because “[h]e’s looking at you
giving him life.” Id. Thomas’ attorney also told that court that Thomas was
“familiar with a state court plea agreement where you agree on a number of years,
and the judge accepts that” but that he was not familiar with sentencing procedures
in federal court. Id.
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After taking the opportunity offered by the court to speak with his family
and his attorney, the court asked Thomas if he wanted “to go forward or go to
trial?” Id. at 28. Thomas responded, “Go ahead and go forward with it.” Id. at
29. The court reminded Thomas that he was “free absolutely to stop this plea and
we’ll go forward and select a jury to try your case.” Id. Thomas acknowledged he
understood that, and the court reiterated that although it was likely he would be
subject to a fifteen year minimum sentence, there was no guarantee that “that’s all
you’ll get.” Id. After being informed of that, Thomas stated that he wanted to
enter a plea of guilty. The court asked Thomas if there was anything that
prevented him from understanding what was being said during the proceedings.
He replied that there was not and explained that he was accustomed to dealing
with the state where if you plead, “you get it right then, you know.” Id. at 29–30.
Thomas agreed that the government’s recitation of the facts was
substantially correct, although he stated that “[t]he robbery part” of the factual
recitation made him want to change his plea. Id. at 44. The alleged robbery was
part of the facts surrounding the felon in possession charge against Thomas. The
court explained that he was not pleading guilty to the robbery part; he was
pleading guilty to being a felon in possession of a firearm. After the court’s
explanation, Thomas expressed his desire to go forward with his guilty plea.
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Thomas’ attorney stated that he was satisfied that Thomas fully understood
the charges against him and the consequences of entering a guilty plea. He also
stated that he was satisfied that Thomas was knowingly and voluntarily entering
his plea of guilty.
The PSI showed that Thomas had a criminal history of VI. He had been
convicted on three separate occasions of violent felonies—two convictions for
robbery in the second degree and one conviction for robbery in the third degree.
The PSI recommended a sentencing guideline range of 188 to 235 months
imprisonment.
Thomas’ objections to the PSI where either overruled or withdrawn at
sentencing. The court sentenced Thomas to 235 months imprisonment at the high
end of the guidelines range based on the seriousness of his past convictions and
the present crime. Thomas then stated that he did not hit the officer with his
vehicle. The court replied “you did hit him, and it’s lucky that he wasn’t killed.”
Sentencing Hearing Tran. at 15. Thomas then stated:
The only reason I pled guilty to this was because, from
my understanding, you was supposed to have ran my
charges for once, and then—if I knew all this, I would
have took it trial. I will just put it like that, because I
know I ain’t guilty of none of this shit. And then you
bringing up something 10 years ago. It’s 15 years now,
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basically 15 years. I thought, if it was over 10 years, it’s
supposed to do away with it.
Id. at 16.
Thomas then asked if he could go trial, and the court replied that he could
not, to which Thomas said, “I didn’t know I was pleading. I ain’t never know I
was pleading in this.” Id. at 17. The court explained that Thomas had already
pleaded guilty at an earlier proceeding, but he said he did not know he was
pleading guilty at that time. The court stated that it had received Thomas’
competency report and had no doubt as to his competency to have entered a guilty
plea. Thomas was sentenced to 235 months imprisonment to be followed by five
years of supervised release.
II.
Thomas contends that he did not understand the nature of the charges or the
consequences of his guilty plea. Concerning the nature of the charges, Thomas
contends that he did not understand the difference between the felon in possession
of weapons charge and the felon in possession of ammunition charge. Concerning
the consequences of his guilty plea, Thomas contends that he did not understand
the legal concept of statutory mandatory minimums. He also argues that he did
not understand the Blakely waiver in his plea agreement, although he admits that it
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was ultimately deleted from the written agreement. He argues that he did not
understand that by pleading guilty he was waiving his right to a jury trial and that
his low IQ corresponds to, at best, borderline mental retardation.
The government contends that the district court specifically questioned
Thomas, that he knowingly and voluntarily entered a guilty plea, and that he
understood the nature of his charges and the consequences of his plea. The
government points to the findings of the psychologist who determined that, despite
his low verbal IQ score, Thomas was competent to assist in the preparation of his
case for trial.
To satisfy the requirements of due process, a guilty plea must be entered
into knowingly and voluntarily. United States v. Moriarity, 429 F.3d 1012, 1019
(11th Cir. 2005). “Whether a guilty plea and an accompanying waiver of rights
are knowingly and voluntarily entered is a mixed question of law and fact, which
we review de novo.” Allen v. Thomas, 161 F.3d 667, 670 (11th Cir. 1998).
However, “[c]onstitutional objections not raised before the district court are
reviewed only for plain error. Likewise, when a defendant fails to object to a Rule
11 violation, we review only for plain error.” Moriarity, 429 F.3d at 1018–19
(citation omitted). We have observed that to preserve a Rule 11 error a defendant
should file a motion to withdraw the guilty plea in district court. Id. at 1018 n.2.
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In the present case Thomas’ counsel stated during the plea colloquy that his plea
was knowing and voluntary. Thomas requested a trial during the sentencing
hearing after his sentence had been pronounced, but he did not file a motion to
withdraw his guilty plea. Therefore, we review only for plain error. See id.
“To establish plain error, a defendant must show there is (1) error, (2) that is
plain, and (3) that affects substantial rights.” Id. at 1019. If all three elements are
met, we will reverse only if the plain error substantially affected the fairness of the
proceedings. Id. When accepting a guilty plea, a court must comply with the
requirements of Rule 11 and must “specifically address three core principles,
ensuring that a defendant (1) enters his guilty plea free from coercion, (2)
understands the nature of the charges, and (3) understands the consequences of his
plea.” Id. (quotation marks omitted).
The district court did not plainly err by accepting Thomas’ plea as
voluntary, knowing, and intelligent because Thomas’ plea colloquy met the three
core objectives of Rule 11: (1) Thomas acknowledged that no one had promised
him anything to plead guilty nor had anyone threatened or forced him to plead
guilty; (2) the court reviewed and explained the nature of the charges to him; and
(3) the court ensured that Thomas was aware of the direct consequences of his
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guilty plea by explaining that his plea waived his rights to a jury trial, to remain
silent, and to cross-examine witnesses.
The district court explained at length to Thomas the effect that 18 U.S.C. §
924(e) would have on his sentence and how it required a mandatory minimum of
fifteen years imprisonment. Thomas’ comment during the plea colloquy that he
was “just trying to make sure that I don’t get over 15 years,” Plea Colloquy Tran.
at 25, establishes that he understood the consequences of his guilty plea. Thomas
specifically confirmed that he understood the charges to which he was pleading
guilty and that he had sufficient time to discuss those charges with his lawyer, who
also confirmed that Thomas understood the charges and the consequences of a
guilty plea. Thomas relies on his low IQ score, but the psychologist found him
competent to understand the proceedings against him, and the record reflects that
he did understand those proceedings. Thomas argues that he did not understand
the Blakely waiver, but because it was deleted from his plea agreement, that
argument actually supports the conclusion that his plea, including his sentence
appeal waiver, was entered knowingly and voluntarily. When the district court
determined that Thomas did not understand that part of the plea agreement, it
ensured that the provision was deleted.
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Upon careful review of record, we conclude that the district court did not
plainly err when it accepted Thomas’ guilty plea as knowing and voluntary.
III.
Thomas also contends that district court clearly erred in finding him
competent to stand trial because the record of his plea hearing shows that he did
not have a factual understanding of the proceedings against him. He relies on Pate
v. Robinson, 383 U.S. 375, 86 S. Ct. 836 (1966), to support his contention that the
district court should have conducted a competency hearing sua sponte before
accepting his guilty plea. He argues that the psychologist’s evaluation of him,
which concluded that he was competent to stand trial, was conducted before he
had been indicted on the felon in possession charges. Therefore, he asserts that
the evaluation was incomplete because the psychologist did not evaluate whether
he understood the nature of those charges. He argues that the district court should
not have found him competent on the basis of that psychological evaluation.
In order to be deemed competent to stand trial, a defendant must have
“‘sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding,’” and he must have a rational and factual understanding of
the proceedings against him. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,
1256 (11th Cir. 2002) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.
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Ct. 788, 789 (1960)). If the defendant does not request a competency hearing, “the
standard for determining whether a trial court violates the Due Process Clause by
failing to conduct an inquiry into a defendant’s competency to stand trial . . . is
whether the objective facts known to the trial court at the time create a bona fide
doubt as to mental competency.” Id. (citing Drope v. Missouri, 420 U.S. 162,
180, 95 S. Ct. 896, 908 (1975)). When the district court does not hold sua sponte
a competency hearing, we determine whether the defendant’s procedural due
process rights were violated by focusing on: “(1) evidence of the defendant’s
irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical
opinion regarding the defendant’s competence to stand trial.” Tiller v. Esposito,
911 F.2d 575, 576 (11th Cir. 1990) (citing Drope, 420 U.S. at 180, 95 S. Ct. at
908).
We review a district court’s finding that a defendant was competent to stand
trial under a clearly erroneous standard. United States v. Hogan, 986 F.2d 1364,
1372 (11th Cir. 1993). The record establishes that at the plea hearing Thomas’
behavior and demeanor were not irrational. He asked questions related to how he
could avoid being sentenced above the 15-year mandatory minimum. When
Thomas hesitated about entering his guilty plea, neither Thomas nor his attorney
claimed that Thomas was incompetent. Thomas’ attorney explained to the district
15
court that Thomas was scared because he was familiar with state court proceedings
but unfamiliar with those in federal court.
The psychological evaluation conducted at Thomas’ request showed that
Thomas was competent to enter a plea or to stand trial. The fact that the
evaluation was conducted before Thomas was indicted on the felon in possession
charges does not negate those findings of competency. The district court did not
clearly err in relying on that psychological evaluation and Thomas’ behavior and
demeanor at the plea colloquy to determine that Thomas was competent to enter a
plea.
IV.
Thomas contends that the district court violated his Sixth Amendment rights
under United States v. Booker, 534 U.S. 220, 125 S. Ct. 738 (2005), when it found
that Thomas possessed a firearm in connection with a robbery, and then it used
that finding to enhance his criminal history level and criminal history category.
The government argues the merits of that position, but it had previously filed a
motion to dismiss Thomas’ appeal based on the sentence appeal waiver that was
part of Thomas’ plea agreement. That motion was carried with this case.
In its motion to dismiss, the government contends that Thomas knowingly
and voluntarily entered into a sentencing waiver agreement as part of his plea, that
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he was specifically questioned by the district court about that waiver, and that the
record establishes that he understood the significance of that waiver.
Thomas responds that he did not understand the plea waiver or its
implications and did not understand the Blakely waiver that was deleted from his
plea agreement. He argues, as discussed in the second and third sections of this
opinion, that he did not understand the nature of the charges against him or the
consequences of a guilty plea; that, at best, he is borderline mentally retarded; and
that the district court’s finding of competency was clearly erroneous. We have
already rejected those arguments and have concluded that Thomas entered his plea
knowingly and voluntarily.
Specifically considering the sentence appeal waiver provision in the plea
agreement, that waiver, like the plea agreement as a whole, is valid only if it was
entered into knowingly and voluntarily. United States v. Bushert, 997 F.2d 1343,
1350 (11th Cir. 1993). To establish the waiver’s validity, the government must
show either that (1) the district court specifically questioned the defendant about
the sentence appeal waiver during the plea colloquy, or (2) it is manifestly clear
from the record that the defendant fully understood the significance of the waiver.
Id. at 1351; see also United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir.
2001). An appeal waiver includes the waiver of the right to appeal “difficult or
17
debatable legal issues,” including “blatant error.” United States v. Howle, 166
F.3d 1166, 1169 (11th Cir. 1999). We have also held that broad waiver language
can include in its scope a waiver of the right to appeal based on Booker grounds.
United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005).
During the plea colloquy, the district court specifically questioned Thomas
about the terms of his sentence appeal waiver. The court concluded that Thomas
did not understand the implications of the Blakely waiver provision in that
agreement, and the parties agreed to delete that provision from the plea agreement.
The three exceptions included in Thomas’ sentence appeal waiver provided that
Thomas maintained the right to appeal his sentence based only on the following:
(1) the district court’s imposition of any punishment in excess of the statutory
maximum; (2) the district court’s imposition of any punishment that constitutes an
upward departure from the guidelines sentencing range as determined by the court
at the time the sentence is imposed; and (3) a claim of ineffective assistance of
counsel.
During the plea colloquy, Thomas told the court that he understood that he
was giving up all rights to appeal his sentence except on those three limited
grounds. He also told the court he had discussed with his attorney the important
constitutional rights he was giving up in that section of the plea agreement.
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Thomas’ attorney specifically stated that Thomas understood the sentence appeal
waiver.
From all of this, we conclude that Thomas knowingly and voluntarily
agreed to the sentence appeal waiver. Regardless of the fact that the Blakely
waiver provision was deleted, Thomas’ Booker-based appeal does not fall within
any of the exceptions carved out in the sentence appeal waiver provisions that
remained part of the agreement. The district court sentenced Thomas at the high
end of the guidelines range but did not impose any punishment constituting an
upward departure from the guidelines sentencing range as it had determined that
range when the sentence was imposed.
Because the sentence appeal waiver is enforceable and because Thomas’
sentence appeal is not based on any of the exceptions to the waiver, we grant the
government’s motion to dismiss that part of Thomas’ appeal.
AFFIRMED in part; DISMISSED in part.
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