UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4768
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OWEN RENARDO BOWEN,
Defendant - Appellant.
No. 11-5010
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONNELL DEMETRIUS STANFORD, a/k/a D,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00202-BO-5); James C. Dever, III,
Chief District Judge. (5:09-cr-00202-D-3)
Submitted: July 30, 2012 Decided: August 7, 2012
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
No. 11-4768, dismissed in part, affirmed in part, No. 11-5010,
affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina;
Ronald Cohen, Wilmington, North Carolina, for Appellants.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Owen Bowen appeals his
conviction and 135-month sentence following his guilty plea
pursuant to a plea agreement to one count of conspiracy to
possess with intent to distribute and to distribute more than
fifty grams of cocaine base and more than 500 grams of cocaine,
in violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2012)
and 21 U.S.C. § 846 (2006) (No. 11-4768), and Donnell Demetrius
Stanford appeals his convictions and concurrent 360-month
sentences following his guilty plea to one count of conspiracy
to possess with intent to distribute and to distribute more than
fifty grams of cocaine base and more than 500 grams of cocaine,
in violation of 21 U.S.C.A. § 841(a)(1) and 21 U.S.C. § 846, and
one count of possession with intent to distribute more than
fifty grams of cocaine base and a quantity of cocaine, in
violation of 21 U.S.C.A. § 841(a)(1) (No. 11-5010). The
Government argues that Bowen’s appeal of both his conviction and
sentence is foreclosed by the waiver of appeal rights in his
plea agreement and that Stanford’s appeal is without merit. In
appeal No. 11-4768, we dismiss in part and affirm in part. In
appeal No. 11-5010, we affirm.
A criminal defendant may waive the right to appeal if
that waiver is knowing and intelligent. United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Generally, if
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the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). Whether a defendant validly waived his right
to appeal is a question of law this court reviews de novo.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Where the Government seeks to enforce an appeal waiver and there
is no claim that the Government breached its obligations under
the plea agreement, this court will enforce the waiver if the
record establishes that (1) the defendant knowingly and
intelligently agreed to waive the right to appeal; and (2) the
issue being appealed is within the scope of the waiver. Id. at
168 & n.5.
Upon review of the record and the parties’ briefs, we
conclude that Bowen knowingly and voluntarily waived the right
to appeal his 135-month sentence. Accordingly, we dismiss the
portion of Bowen’s appeal challenging the imposition of his
sentence.
A straightforward reading of the language of the
appellate waiver provision of Bowen’s written plea agreement,
however, belies the Government’s contention that it also
forecloses Bowen’s right to challenge his conviction on direct
appeal. Nevertheless, we decline to reach the merits of Bowen’s
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challenge to the district court’s denial of his motion to
dismiss the indictment as the claimed error was waived by virtue
of Bowen’s guilty plea. “When a [criminal] defendant pleads
guilty, he waives all nonjurisdictional defects in the
proceedings conducted prior to entry of the plea.” United
States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004).
A defendant’s guilty plea “represents a break in the chain of
events which has preceded it in the criminal process.”
Tollett v. Henderson, 411 U.S. 258, 267 (1973). “Thus, the
defendant who has pled guilty has no non-jurisdictional ground
upon which to attack [a] judgment except the inadequacy of the
plea or the [G]overnment’s power to bring any indictment at
all.” United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir.
2010) (internal quotation marks and citation omitted).
Bowen’s valid guilty plea thus waives his argument
challenging the district court’s denial of his motion to dismiss
the indictment on the basis of alleged prosecutorial misconduct.
Accord United States v. Carr, 303 F.3d 539, 542-43 (4th Cir.
2002) (noting that defects in an indictment are not
jurisdictional). Accordingly, in appeal No. 11-4768, we also
affirm the district court’s judgment in part.
Turning to Stanford’s appeal, he argues first that his
guilty plea was involuntary due to the district court’s denial
of his requests to substitute counsel, exertion of pressure for
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a guilty plea, and coercive behavior. We conclude that this
argument is without merit.
This court will not find a guilty plea to be
involuntary where there has not been “a ‘breakdown’ of
attorney-client communication so great that the principal
purpose of the appointment—the mounting of an adequate defense
incident to a fair trial—has been frustrated.” United States v.
Smith, 640 F.3d 580, 582, 588, 593 (4th Cir.), cert. denied,
132 S. Ct. 430 (2011). However, even if such a breakdown in
communication occurs, this court has explained that,
after granting one or more substitution motions a
court may well decline to grant further motions if it
finds that yet another substitution would not remedy
the problem. In such a case, it cannot be said that a
defendant did not have the Assistance of Counsel for
his defen[s]e, though defendant’s obstinacy may have
frustrated it.
Id. at 591 (internal quotation marks and citation omitted).
After review of the record, we conclude that the
district court’s denial of Stanford’s motions to substitute
counsel did not deprive him of the meaningful assistance of
counsel. The record makes clear that Stanford’s conflict with
his appointed counsel stemmed from his own obstinacy and that
providing Stanford with substitute counsel would not have
lessened his obstinacy or improved his assessment of his
circumstances. Accord United States v. DeTemple, 162 F.3d 279,
289 (4th Cir. 1998) (stating that a “[district] court can
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properly refuse a request for substitution of counsel when the
defendant’s own behavior creates the problem”). Further,
Stanford’s assertions that the district court exerted “pressure”
on him to plead guilty and acted in an “inherently coercive”
manner find no support in the record. Because the prerequisites
to Stanford’s claim of an involuntary guilty plea fail, the
claim necessarily fails, and we therefore reject it.
Stanford also raises a number of challenges to his
360-month sentence. This court examines the district court’s
sentencing determinations “under an abuse-of-discretion
standard, which translates to review [of the sentence] for
reasonableness.” United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010) (internal quotation marks omitted).
Stanford’s challenges to the propriety of his sentence are
raised for the first time on appeal. This court reviews such
challenges for plain error only. United States v. Lynn,
592 F.3d 572, 576-77 (4th Cir. 2010).
Stanford argues that the district court effectively
convicted him of crimes not charged by the grand jury or proved
in a manner consistent with the requirements of notice, in
violation of the Fifth and Sixth Amendments. This argument is
meritless. As long as a district court sentences a defendant
within the statutory maximum authorized by the jury’s findings
or his guilty plea, the court can consider facts it finds by a
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preponderance of the evidence to exercise its discretion in
determining the appropriate sentence within that maximum.
United States v. Grubbs, 585 F.3d 793, 798-803 (4th Cir. 2009);
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008);
United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007).
Stanford’s guilty plea subjected him to a maximum sentence of
life in prison on each count. He received concurrent prison
terms of 360 months based on facts found by the district court
by a preponderance of the evidence. The court’s consideration
of these facts in determining Stanford’s sentence did not
violate his constitutional rights.
Stanford also raises challenges directed specifically
at the district court’s calculation of his total offense level
under the U.S. Sentencing Guidelines Manual (2010) based on its
reliance on statements in the presentence report (“PSR”) and the
testimony of the Government’s witness at sentencing.
Specifically, Stanford contends that his right under the Sixth
Amendment to confront witnesses against him was violated because
the court considered testimonial hearsay present in both the PSR
and the testimony of the witness. This contention is meritless
because the Confrontation Clause does not apply at sentencing.
United States v. Powell, 650 F.3d 388, 393 (4th Cir.), cert.
denied, 132 S. Ct. 350 (2011).
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Stanford also suggests that the district court erred
in considering and accepting such evidence because it was not
reliable. A sentencing court may consider “any relevant
information before it, including uncorroborated hearsay,
provided that the information has sufficient indicia of
reliability to support its accuracy.” Id. at 392 (internal
quotation marks omitted). Although Stanford faults the district
court for erroneously accepting the testimony of the witness
regarding the reliability of statements made by cooperating
individuals on the premise that the witness was not qualified as
an expert, this argument misses the mark. The Federal Rules of
Evidence simply do not apply at sentencing. Fed. R. Evid.
1101(d)(3); United States v. Wilkinson, 590 F.3d 259, 269
(4th Cir. 2010). Further, Stanford’s suggestion that statements
from the cooperating individuals were unreliable because those
individuals were “criminals” is unexplained and unsupported.
Finally, insofar as Stanford may be inviting us to
overrule Powell, we decline his invitation. Powell is
controlling circuit precedent, and “a panel of this court cannot
overrule, explicitly or implicitly, the precedent set by a prior
panel of this court. Only the Supreme Court or this court
sitting en banc can do that.” United States v. Rivers, 595 F.3d
558, 564 n.3 (4th Cir. 2010) (internal quotation marks and
alteration omitted).
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Stanford thus fails to establish that the district
court committed error—plain or otherwise—in imposing his
sentence. Accordingly, in appeal No. 11-5010, we affirm the
district court’s judgment.
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. 11-4768, DISMISSED IN PART,
AFFIRMED IN PART
No. 11-5010, AFFIRMED
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