United States v. Edgar

                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                       OCT 30 2003
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

       v.                                             No. 02-6195

 GLENN DWAYNE EDGAR,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                     (D. Ct. No. CR-01-223-R)


Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, appearing
for Appellant.

F. Michael Ringer, Assistant United States Attorney (Robert G. McCampbell,
United States Attorney, and Sue Tuck Richmond, Assistant United States
Attorney, with him on the brief), Office of the United States Attorney, Oklahoma
City, Oklahoma, appearing for Appellee.


Before TACHA, Chief Circuit Judge, SEYMOUR, Circuit Judge, and BRORBY,
Senior Circuit Judge.


TACHA, Chief Circuit Judge.


      On February 11, 2002, Defendant-Appellant Glen Dwayne Edgar pleaded
guilty to manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1)

and to possessing a firearm in furtherance of a drug trafficking offense in

violation of 18 U.S.C. § 924(c)(1)(A)(i). Pursuant to his plea agreement, Mr.

Edgar waived his right to appeal his conviction and sentence. Despite this

agreement, Mr. Edgar filed a timely notice of appeal. Because we find that Mr.

Edgar validly waived his right to direct appeal, we DISMISS.

                                   I. Background

      On December 12, 2001, a federal grand jury indicted Mr. Edgar on two

counts of distributing methamphetamine (Counts I and II), one count of

manufacturing methamphetamine (Count III), and one count of possessing

firearms in furtherance of a drug trafficking crime (Count IV). Mr. Edgar entered

into a plea agreement with the government on February 11, 2002. This agreement

waived his right to appeal directly and to challenge collaterally his “guilty plea

and any other aspect of his conviction” and his “sentence as imposed by the Court

and the manner in which the sentence is determined,” except in two limited

circumstances not relevant here. In exchange for the plea, the government agreed

to drop Counts I and II. The district court subsequently sentenced Mr. Edgar to a

120-month prison term on Count III and a 60-month prison term on Count IV.

This appeal followed. We take jurisdiction pursuant to 28 U.S.C. § 1291.




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                                      II. Discussion

       On appeal, Mr. Edgar contends that we should not enforce his waiver of

appellate rights because (1) he received ineffective assistance of counsel and (2)

the waiver was not knowing or voluntary.

       On the first point, Mr. Edgar argues that he received ineffective assistance

of counsel, which tainted the plea agreement, because he received essentially the

same sentence under the plea agreement that he would have received if convicted

at trial on all four counts. To support this claim, he alleges that he received little

to no benefit from the plea agreement, yet gave up valuable appellate rights.

       Although it is well established that we will not enforce a waiver that is the

product of ineffective assistance of counsel, see United States v. Elliot, 264 F.3d

1171, 1173 (10th Cir. 2001), we dismiss Mr. Edgar’s direct appeal of this issue

without reaching the merits of his claim. With rare exception, a defendant must

raise ineffective assistance of counsel claims in a collateral proceeding, not on

direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc) (“Ineffective assistance of counsel claims . . . . brought on direct

appeal are presumptively dismissible, and virtually all will be dismissed.”)   .

Indeed, we have followed this practice even when the issues on direct appeal are

sufficiently developed for us to pass judgment, reasoning that we benefit from the

views of the district court regarding such claims. Id. Accordingly, we refuse to


                                            -3-
consider Mr. Edgar’s ineffective assistance of counsel claim on direct appeal.

      We turn next to Mr. Edgar’s second argument. Despite evidence that he

fully understood his plea agreement, Mr. Edgar argues that the district court’s

failure to discuss the appellate waiver during the plea colloquy establishes that

the waiver was not knowing and voluntary.

      Rule 11(b)(1)(N) of the Federal Rules of Criminal Procedure requires a

district court to “inform [a] defendant of, and determine that the defendant

understands . . . the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence” before accepting a plea. Fed. R.

Crim. P. 11(b)(1)(N). The commentary to Rule 11 notes that the Advisory

Committee drafted the rule, in large part, to ensure that appellate waivers are

knowing and voluntary. See Fed. R. Crim. P. 11(b)(1)(N), advisory committee

notes to 1999 amendments (“Given the increased use of [waiver] provisions, the

Committee believed it was important to insure that . . . the waiver was voluntarily

and knowingly made by the defendant.”); 1 see also United States v. Vonn, 535


      1
       Numerous courts have recognized the vital role that the Rule 11 colloquy
plays in ensuring that a defendant voluntarily and knowingly enters into a plea
agreement. See, e.g., United States v. Vonn, 535 U.S. 55, ___, 122 S. Ct. 1043,
1046, 152 L. Ed. 2d 90 (2002) (“[R]ule [11 is] meant to ensure that a guilty plea
is knowing and voluntary”; it achieves this purpose “by laying out the steps a trial
judge must take before accepting such a plea.”); United States v. Reyes, 300 F.3d
555, 558 (5th Cir. 2002) (“Rule 11 ensures that a guilty plea is knowing and
voluntary by requiring the district court to follow certain procedures before
                                                                       (continued...)

                                         -4-
U.S. 55, ___, 122 S. Ct. 1043, 1049 n.6, 152 L. Ed. 2d 90 (2002) (“[T]he

Advisory Committee Notes provide a reliable source of insight into the meaning

of a rule, especially when . . . the rule was enacted precisely as the Advisory

Committee proposed.”).

      Rule 11(b)(1)(N) –– enacted as Rule 11(c)(6) –– became effective

December 1, 1999. Prior to its enactment, district courts were under no

obligation to discuss appellate waivers, and we only considered the absence of

such a discussion to the extent that it illuminated whether the waiver was

knowing and voluntary. See, e.g., United States v. Atterberry, 144 F.3d 1299,

1300 (10th Cir. 1998). Nevertheless, prior to the enactment of Rule 11(b)(1)(N),

we employed an error analysis when a district court failed to give other warnings

that were then required by Rule 11. See, e.g., United States v. Vaughn, 7 F.3d

1533, 1535-36 (10th Cir. 1993) (employing error analysis to review a district

court’s omission of the instructions required by Rule 11(e)(2)). In light of the

clear text of Rule 11(b)(1)(N) and the Supreme Court’s decision in Vonn, we see

no reason why we should treat Rule 11(b)(1)(N) errors any differently. Vonn, 122

S. Ct. at 1054 (holding that the district court’s failure to give a required warning,


      1
       (...continued)
accepting such a plea.”); United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001)
(“In explicating the rationale for adopting [Rule 11(b)(1)(N)], the advisory
committee made it pellucid that such an inquiry, properly performed, offers
considerable assurance of the defendant’s knowledge and volition.”).

                                          -5-
now embodied at Rule 11(b)(1), is reviewed under harmless error, if objection

was made in the district court, or under plain error, if no objection was made).

Thus, we conduct an error review when a district court fails to discuss the

provisions of Rule 11(b)(1)(N) at the colloquy. Even under error review,

however, the knowing and voluntary nature of a waiver remains important to the

extent that it informs our error analysis . 2

       Following this guidance, we conclude that it is always error for a district

court to fail to discuss an appellate waiver provision during a Rule 11 colloquy,

although not always reversible error. This conclusion comports with the decisions

of several other circuits. See, e.g., Teeter, 257 F.3d at 24 (finding that Rule 11

requires district courts to “inquire specifically at the change-of-the-plea hearing

into any waiver of appellate rights” and that failure to do so “will constitute error

and may serve to invalidate the waiver”); United States v. Siu Kuen Ma, 290 F.3d




       2
        This is the first time since its passage that we have addressed how we
review Rule 11(b)(1)(N) errors in a binding, published opinion. United States v.
Rubio, 231 F.3d 709 (10th Cir. 2000), while published after the enactment of Rule
11(b)(1)(N), reviewed a plea entered into prior to the enactment of the Rule. In
United States v. Chavez-Salais, 337 F.3d 1170 (10th Cir. 2003), we reviewed a
plea agreement pursuant to contract principles to determine whether the plea
waived the right to modify the sentence pursuant to 18 U.S.C. § 3582(c)(2). Id. at
1172-73. Because Chavez-Salais did not address Rule 11(b)(1)(N) in the context
of Vonn, that case only guides us as to whether the error affected substantial
rights.

                                                -6-
1002, 1005 (9th Cir. 2002) (same); Reyes, 300 F.3d at 559-60 (same). 3

       In deciding whether this omission constitutes reversible error, we must

determine whether to review it under the harmless error or plain error standard.

The Supreme Court has instructed that when a defendant fails to raise a Rule 11

error to the district court––as is true of Mr. Edgar––we review any alleged error

under the plain error standard of Fed. R. Crim. P. Rule 52(b).     See Vonn , 122 S.

Ct. at 1046 (“hold[ing] that a silent defendant has the burden to satisfy the

plain-error rule”).

       “To notice plain error under Fed. R. Crim. P. 52(b), the error must (1) be an

actual error that was forfeited; (2) be plain or obvious; and (3) affect substantial

rights, in other words, in most cases the error must be prejudicial, i.e., it must

have affected the outcome . . . .” United States v. Haney, 318 F.3d 1161, 1166

(10th Cir. 2003) (en banc). “If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997) (internal



       3
        We take this moment to remind district courts to perform vigilantly their
duties under Rule 11. Strict compliance with the requirements of Rule 11
conserves judicial resources and offers the best mechanism to ensure that
defendants understand their situation. This is especially true with appellate
waivers, because these waivers will, in most instances, prevent defendants from
bringing issues to the attention of an appellate court.

                                            -7-
quotations omitted).

      Under plain error analysis, we must first determine if actual error exists.

Haney, 318 F.3d at 1166. As we discussed above, the district court erred by

failing to discuss Mr. Edgar’s waiver of appellate rights before accepting his plea.

      Next, we must decide whether the error was plain. Id. Error “is ‘plain’ if it

is obvious or clear, i.e., if it is contrary to well-settled law.” United States v.

Duran, 133 F.3d 1324, 1330 (10th Cir. 1998). Generally, we do not consider an

error to be “plain” in the absence of “Supreme Court or controlling circuit

authority, [where] other circuit authority is divided.” Haney, 318 F.3d at 1167.

This general rule, however, is most persuasive “where the explicit language of a

statute or rule does not specifically resolve an issue[.]” United States v. Lejarde-

Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      Applying these considerations to the current case, we find that the district

court’s failure to discuss the appellate waiver provision was obvious. The

congressional mandate embodied in Rule 11(b)(1)(N) is clear: “the court must

inform the defendant of, and determine that the defendant understands . . . the

terms of any plea-agreement provision waiving the right to appeal or to

collaterally attack the sentence.” Fed. R. Crim. P. Rule 11(b)(1)(N) (emphasis

added). Therefore, we find that the district court committed an error, which was

plain, by failing to discuss Mr. Edgar’s waiver of appellate rights.


                                           -8-
      Third, we must determine whether the error affected substantial rights. See

Duran, 133 F.3d at 1332. “An error affects substantial rights where the error was

prejudicial, that is, if it affected the outcome of the district court proceedings.”

See United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (internal

quotations omitted). In the context of a plea agreement, an error is prejudicial if

the defendant has shown that he would not have pleaded guilty if the district court

had complied with Rule 11(b)(1)(N). See Vaughn, 7 F.3d at 1536 (finding that a

district court’s omission of an instruction required by then-Rule 11(e)(2) did not

affect substantial rights, in part, because the defendant did “not allege that he

would not have entered a guilty plea if the court had given the proper warning”).

We may consult the whole record when considering the effect of any error on

substantial rights. Vonn, 122 S. Ct. at 1055.

      In the context of appellate waivers, our cases have recognized that the sine

qua non of prejudice is whether the defendant knowingly and voluntarily waived

his right to appeal. 4 See, e.g., Chavez-Salais, 337 F.3d at 1173. In determining

whether such waivers are knowing and voluntary, we have looked to two sources:

(1) the text of the plea agreement and (2) the plea colloquy. Id.

      Considering these sources, we conclude that Mr. Edgar knowingly and


      4
       This is not to say that we foreclose other grounds for finding prejudice in a
future case or that the lack of a knowing and voluntary waiver constitutes
prejudice under every conceivable set of circumstances.

                                           -9-
voluntarily waived his right to direct appeal. First, the plea agreement––in plain

language––explains the waiver of appellate rights. The plea    agreement clearly

states that Mr. Edgar waives his right to appeal and to challenge collaterally his

“guilty plea and any other aspect of his conviction” and his “sentence as imposed

by the Court and the manner in which the sentence is determined.” Second, the

signature section of that agreement reads, “By signing this agreement, defendant

acknowledges that he has discussed its terms with his attorney and understands

and accepts those terms.” Third, Mr. Edgar attested in his petition to enter a plea

of guilty that he (1) had sufficient time to discuss his case with his attorney and

(2) entered into the plea agreement voluntarily. Fourth, during the plea colloquy,

Mr. Edgar stated that he entered into the agreement “voluntarily and completely

of [his] own free choice,” that the plea agreement accurately reflected his

agreement with the government, and that he was fully satisfied with the services

of his attorney.   See United States v. Rubio , 231 F.3d 709, 712 (10th Cir. 2000)

(finding that a waiver was knowing and voluntary based, in part, on statements

made by the defendant during the plea colloquy).

       Despite this substantial evidence, Mr. Edgar denies that the agreement was

knowing and voluntary. To support this argument, he states that nothing in the

record shows that he understood the waiver. This argument, however,

misconstrues the proper burden allocation. Mr. Edgar has the burden to present


                                          -10-
evidence from the record establishing that he did not understand the waiver.

Vonn , 122 S. Ct. at 1046. A mere silent record does not satisfy this burden.   See

Rubio, 231 F.3d at 712 (enforcing a waiver when “[n]othing in the record

indicate[d] Defendant’s decision to enter into the plea agreement was other than

knowing and voluntary”). Moreover, as we noted above, we find that this record

contains assurances that Mr. Edgar, a small business owner and a high school

graduate with some college education, consulted with his attorney before signing

the agreement, read it, and understood it. Because we find that Mr. Edgar fails to

show evidence in the record to dispute his own written and verbal assertions, we

find that the waiver was knowing and voluntary. See United States v. Standiford,

148 F.3d 864, 868 (7th Cir. 1998) (statements made in a plea colloquy are

presumed to be true).

       We hold that Mr. Edgar’s waiver, because it was knowing and voluntary,

satisfies the essential purpose underlying Rule 11, despite the flawed colloquy.

See Fed. R. Crim. P. 11(b)(1)(N), advisory committee notes to the 1999

amendments (stating that Congress designed Rule 11(b)(1)(N) to ensure that

waivers are knowing and voluntary). Thus, because he knowingly and voluntarily

entered into the plea agreement, the district court’s failure to discuss the waiver

did not affect Mr. Edgar’s substantial rights. Because Mr. Edgar fails to satisfy

the third prong of the plain error review, we have no occasion to decide whether


                                           -11-
the error below seriously affected the fairness, integrity, or public reputation of

judicial proceedings. See Johnson, 520 U.S. at 467.

                                   III. Conclusion

      For the foregoing reasons, we DISMISS Mr. Edgar’s direct appeal,

refusing to reach the ineffective assistance of counsel argument and holding that

the district court’s failure to satisfy the requirements of Rule 11(b)(1)(N) did not

constitute plain error.




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