UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4400
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW DOUGLAS DALZELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00008-MR-1)
Argued: October 25, 2011 Decided: November 23, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
ARGUED: Charles Robinson Brewer, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Anne M. Tompkins, United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew Douglas Dalzell pled guilty, pursuant to a written
plea agreement, to coercion and enticement, in violation of 18
U.S.C. § 2422(b) (2006). The district court sentenced Dalzell to
320 months in prison, and he filed a timely notice of appeal,
challenging the reasonableness of his sentence and claiming
ineffective assistance of counsel. The Government has sought
dismissal of the appeal, asserting that Dalzell validly waived
his right to appeal as a part of the plea agreement. We agree
with the Government, and thus we affirm in part and dismiss in
part.
I.
As the facts underlying Dalzell’s conviction are not
relevant to the issues, we dispense with any description of his
underlying conduct.
Dalzell’s plea agreement provided as follows, in part:
Defendant, in exchange for the concessions made by the
United States in this plea agreement, waives all such
rights to contest the conviction except for: (1)
claims of ineffective assistance of counsel or (2)
prosecutorial misconduct. Defendant also understands
that 18 U.S.C. § 3742 affords a defendant the right to
appeal the sentence imposed and Defendant knowingly
and expressly waives all rights conferred by 18 U.S.C.
§ 3742 or otherwise to appeal whatever sentence is
imposed with the two exceptions set forth above.
J.A. 14. At his Rule 11 plea hearing, Dalzell stated that he had
reviewed the indictment and the plea agreement with his lawyer.
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The court identified the charge and set out the elements of the
offense. Dalzell informed the court that he was pleading guilty
to the offense and that he understood each element of the
offense. The court identified the various trial rights that he
would waive; Dalzell informed the court that he understood.
Dalzell stated that he was guilty and that his plea was
voluntary and not the result of coercion, threats, or promises,
other than those promises set out in the written plea agreement.
The Assistant United States Attorney (“AUSA”) summarized
the terms of the plea agreement, including the waiver of appeal
provision, stating, “Finally, the defendant waives all rights to
contest the conviction, except for, one, claims of ineffective
assistance of counsel, and, two, prosecutorial misconduct.” Id.
at 34. Dalzell confirmed that he understood and agreed with the
terms as the AUSA explained them. The court also specifically
asked about the appeal waiver:
Have you discussed your right to appeal with [your
attorney], and do you understand that the plea
agreement in this case provides that you may not
appeal your conviction, or sentence or contest the
same in a post-conviction proceeding unless it is on
the grounds of, one, prosecutorial misconduct, or two,
ineffective assistance of counsel?
Id. at 34-35. Dalzell confirmed his understanding of the waiver
provision. The court followed up, “Do you knowingly and
willingly accept these limitations on your right to appeal and
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to file post-conviction proceedings?” Id. at 35. Dalzell again
confirmed his understanding of the waiver provision.
Thereafter, defense counsel confirmed that she had reviewed
each section of the plea agreement terms with Dalzell and that
she was satisfied that he understood those terms. Dalzell again
confirmed that he understood the entire proceeding and that he
wanted the court to accept his guilty plea. The court found that
Dalzell’s plea was knowing and voluntary and that he understood
the charges, potential penalties and consequences, and thus
accepted the guilty plea.
A written “Rule 11 Inquiry and Order of Acceptance of Plea”
was completed, in which Dalzell answered “yes” in response to
the following inquiry:
Have you discussed your right to appeal with your
attorney, and do you understand the plea agreement in
this case provides that you may not appeal your
conviction or sentence or contest the same in a post-
conviction proceeding unless it is on the grounds of
prosecutorial misconduct or ineffective assistance of
counsel?
Id. at 45.
II.
A.
Prior to sentencing, a presentence report (“PSR”) was
prepared. Paragraphs 44 and 45 of the PSR documented Dalzell’s
confession to a 1997 murder. Although Dalzell had been indicted
for the murder, he had not been convicted of that offense; a
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North Carolina state trial judge had suppressed the confession,
finding that the police had violated Dalzell’s Miranda rights
and that the confession was involuntary. Consequently, Dalzell’s
PSR in the case at bar assigned no criminal history points for
the murder charge.
Defense counsel filed a sentencing memorandum, arguing that
the paragraphs describing the suppressed confession should be
stricken from the PSR and given no consideration by the district
court because the confession was involuntary. The Government
responded that information concerning the confession was
properly included in the PSR because, contrary to the findings
and conclusions of the state trial judge in the homicide
prosecution, the confession was voluntary. The Government
included the state court’s order of suppression as an attachment
to its submission, and the Government asserted that it was
content to have the district court rely on some of the state
court’s findings of fact instead of relitigating the issue of
the voluntariness of the confession in an evidentiary hearing.
Although Dalzell’s counsel did not insist upon (or even request)
an evidentiary hearing, she did make clear her objection to the
district court’s consideration of the confession.
In any event, as calculated in the final PSR, Dalzell’s
total offense level was 37 and his criminal history category was
II, yielding a sentencing range of 235 to 293 months.
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B.
At the sentencing hearing, the court overruled Dalzell’s
objection to the inclusion of paragraphs 44 and 45, related to
the confession, and the court accepted the PSR as written,
except for a provision not relevant here. The Government timely
moved for an upward departure under U.S.S.G. § 4A1.3 or a
variance based on an alleged inadequate criminal history score.
That is, the Government argued that the district court should
factor into its sentencing calculus the unadjudicated murder
charge.
The district court found, after hearing argument, that
Dalzell’s criminal history score underrepresented his criminal
history and that the confession could be considered under §
4A1.3 because (contrary to the state court finding) it was
voluntary and thus reliable. Accordingly, the court assigned
three points to Dalzell’s criminal history score, i.e., the
points he would have received had he been convicted of the
murder. The court concluded that Dalzell’s final criminal
history category was III, providing an advisory Guidelines range
of 262 to 327 months. The court sentenced Dalzell to 320 months.
As mentioned, no sworn testimony was taken from Dalzell or
anyone else at sentencing. A transcript of the evidentiary
hearing before the state court was offered to the district court
by Dalzell, but the parties agree that the district court did
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not review the transcript before it imposed the sentence. The
district court adopted some of the state court’s findings of
fact, those proposed by the Government, and made an independent
determination that the confession was voluntary. J.A. 110-15,
146.
III.
In challenging his sentence as procedurally unreasonable,
Dalzell asserts on appeal that the district court erred in
relying on his murder confession and in assessing three
additional criminal history points as a result, and that the
error falls outside the scope of his waiver. We disagree.
The issue of whether a defendant has validly waived his
right to appeal in a plea agreement is a matter of law this
court reviews de novo. United States v. Manigan, 592 F.3d 621,
626 (4th Cir. 2010). A defendant is precluded from raising an
issue on appeal if there is a valid waiver and the issue is
within the scope of the waiver. United States v. Blick, 408 F.3d
162, 168 (4th Cir. 2005).
A defendant may effectively waive his appellate rights if
the waiver is knowing and intelligent. Manigan, 592 F.3d at 627.
In making this determination, we examine the totality of the
circumstances, including the defendant’s experience, conduct,
educational background, and familiarity with the terms of the
plea agreement, as well as whether the waiver is “unambiguous”
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and “plainly embodied” in the plea agreement and whether the
district court sufficiently explained the waiver during the Rule
11 colloquy. United States v. General, 278 F.3d 389, 400-01 (4th
Cir. 2002); United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992).
Here, Dalzell knowingly and voluntarily waived his right to
appeal his sentence. Dalzell was thirty-two years old and had
completed his G.E.D. The waiver provision was clearly set forth
in a separate paragraph of the plea agreement, which Dalzell
signed. At the plea colloquy, the AUSA set out the terms of the
waiver, and the court specifically inquired into the waiver.
Dalzell stated that he understood the terms of the agreement.
On its face, Dalzell’s challenge to the district court’s
consideration of the murder confession falls within the scope of
his appellate waiver. The plain language of the waiver covers
“all rights conferred by 18 U.S.C. § 3742 or otherwise to appeal
whatever sentence is imposed.” J.A. 14. The waiver expressly
excludes only claims of ineffective assistance of counsel and
prosecutorial misconduct. Dalzell’s contention that the
ineffective assistance of counsel reservation supports his right
to appeal here, particularly because the district court
addressed the issue at sentencing, Appellant’s Br. at 25-26, is
unpersuasive. His sentencing challenge is independent from his
claim of ineffective assistance of counsel.
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Moreover, even if we were to consider the contention
Dalzell raises in his reply brief, see Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (concluding
that a claim not properly raised in an appellant’s opening brief
is abandoned), that the prosecutor’s argument that the
constitutionally defective confession should be included in the
PSR and form the basis of an enhanced sentence constitutes
prosecutorial misconduct, Appellant’s Reply Br. at 14-15, we are
unpersuaded. The record fails to show that the prosecutor’s
remarks and conduct were improper and “prejudiced the defendant
to such an extent as to deprive the defendant of a fair
[sentencing determination].” United States v. Allen, 491 F.3d
178, 191 (4th Cir. 2007). Indeed, Dalzell agreed as a part of
the plea agreement that either party may seek a departure,
precluding him from arguing that doing so constitutes
misconduct. Nor does Dalzell’s challenge fall within the narrow
class of cases we have recognized as outside the scope of
appellate waivers: challenges to a sentence based on a
constitutionally impermissible factor such as race or imposed in
excess of the statutory maximum, or “on the ground that the
proceedings following entry of the guilty plea were conducted in
violation of his Sixth Amendment right to counsel.” United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
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We have held that state court rulings on motions to
suppress evidence ordinarily do not bind federal prosecutors,
United States v. Safari, 849 F.2d 891, 893 (4th Cir.), cert.
denied, 488 U.S. 945 (1988) (citing with approval United States
v. Mejias, 552 F.2d 435 (2d Cir.), cert. denied, 434 U.S. 847
(1977)), and there is nothing in the record before us to take
this case out of the category of “ordinary.” To be sure,
particularly with respect to challenged confessions, the better
practice in such circumstances is for the district court to
conduct an evidentiary hearing in the subsequent federal
prosecution, and then to set out clear findings and conclusions
supporting its basis for reaching a legal conclusion on the
reliability of the confession, particularly when, as here, the
federal district court’s conclusion is directly contrary to that
of the state court.
Thus, caution must be the watchword. Although a sentencing
court may consider relevant information without regard to its
admissibility under the Federal Rules of Evidence, provided the
evidence has “sufficient indicia of reliability to support its
probable accuracy,” U.S.S.G. § 6A1.3(a), p.s., there are
constitutional limitations on the scope of information a court
may consider. We have emphasized that Supreme Court precedents
“recognize a due process right to be sentenced only on
information which is accurate.” United States v. Lee, 540 F.2d
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1205, 1211 (4th Cir. 1976) (citing United States v. Tucker, 404
U.S. 443 (1972); William v. New York, 337 U.S. 241 (1949);
Townsend v. Burke, 334 U.S. 736 (1948)); see also Roberts v.
United States, 445 U.S. 552, 556 (1980) (“We have . . .
sustained due process objections to sentences imposed on the
basis of ‘misinformation of constitutional magnitude.’”); United
States v. Williams, 668 F.2d 1064, 1072 (9th Cir. 1981) (“Where
. . . the trial judge relies on materially false or unreliable
information, there is a violation of defendant’s due process
rights.”). Indeed, in United States v. Nichols, 438 F.3d 437
(4th Cir. 2006), we suggested that where law enforcement has
coerced statements or where statements are otherwise
involuntary, the statements may be so unreliable as to preclude
their consideration at sentencing. 438 F.3d at 443-44 (“[W]e
conclude that in cases such as this one--where there is no
evidence that an illegally obtained statement was actually
coerced or otherwise involuntary--the substantial burden on the
sentencing process resulting from exclusion of that statement
outweighs any countervailing concerns about police deterrence or
unreliable evidence.”). Thus, where a district court has
depended upon unreliable, coerced or otherwise involuntary,
statements, there may lurk a constitutional issue beyond the
scope of an appellate waiver. Reliance on an allegedly
unreliable confession does not, however, fall within the
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previously recognized issues that fall outside the scope of an
appellate waiver, and we decline to adopt a new exception here.
Dalzell’s challenge to the district court’s procedural
decisions in determining whether the confession was reliable--
i.e., not holding an independent evidentiary hearing in the
absence of a request, not considering the transcript from the
underlying state court suppression hearing, and adopting some,
but not all, of the state court’s factual findings--appears to
have some bite. Nevertheless, our careful review of the record,
informed by the cogency of counsels’ presentations at oral
argument, satisfies us that the issue presented on appeal is
foreclosed by Dalzell’s valid appeal waiver.
IV.
Dalzell also contends that defense counsel was ineffective.
Unless counsel’s ineffectiveness conclusively appears on the
face of the record, this issue should be raised, if at all, in a
28 U.S.C.A. § 2255 (West Supp. 2010) motion. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Because we find
no conclusive evidence of ineffectiveness on the face of the
record, we decline to address the merits of this claim.
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V.
For the reasons set forth, we affirm in part and dismiss in
part.
AFFIRMED IN PART AND
DISMISSED IN PART
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