United States v. Andrew Xavier Salery
681 F. App'x 854
| 11th Cir. | 2017Background
- Andrew Salery was charged with felon-in-possession (two counts) and possession with intent to distribute marijuana; he pleaded guilty under a plea agreement that included an appeal/collateral-attack waiver and a 10-year sentencing cap; he was sentenced to 90 months.
- Defense counsel moved for a competency determination; Dr. Shaffer diagnosed serious disorders and frontal-lobe impairment and questioned competency; the court ordered a BOP evaluation.
- BOP psychologist Dr. Warren-Phillips tested Salery (IQ 58 on one test but suspected malingering) and concluded he was competent to stand trial; the district court credited her over Dr. Shaffer after a full competency hearing.
- At plea colloquy the court asked Salery about the appeal waiver but used ambiguous language (“appeal your sentence under some circumstances”) and noted Salery’s hesitancy; the court nevertheless accepted the guilty plea.
- At sentencing the district court applied a two-level U.S.S.G. §2K2.1(b)(4) enhancement for possessing a stolen firearm, relying on the case agent’s testimony tracing the .40 cal Glock to an owner whose bill of sale matched the firearm despite an initial incident report misidentifying caliber.
Issues
| Issue | Salery's Argument | Government/District Court Argument | Held |
|---|---|---|---|
| Competency to plead/guilty | District court clearly erred; expert Shaffer showed severe disorders and impairments | Court relied on BOP examiner Warren-Phillips and full hearing; two permissible views of evidence | Court did not clearly err; Salery competent |
| Validity of appeal/collateral-attack waiver | Waiver not knowing/voluntary given ambiguous colloquy and Salery’s hesitancy/mental-health history | Waiver in plea agreement and court questioned Salery at colloquy | Waiver invalid and severed (not enforceable) |
| Sentencing enhancement for stolen firearm (§2K2.1(b)(4)) | Agent testimony was hearsay and unreliable (incident report misidentified caliber) | Sentencing may consider hearsay if reliable and corroborated; agent traced .40 Glock to owner with bill of sale matching serial number | Enhancement upheld; evidence sufficiently reliable |
| Standard of review for each issue | N/A (argued as part of claims) | Competency: clear-error; waiver validity: de novo; sentencing facts: clear-error | Court applied correct standards and affirmed convictions and sentence |
Key Cases Cited
- United States v. Saingerard, 621 F.3d 1341 (11th Cir. 2010) (competency finding reviewed for clear error)
- United States v. Izquierdo, 448 F.3d 1269 (11th Cir. 2006) (factfinder may credit one expert over another when evidence permits)
- United States v. Johnson, 541 F.3d 1064 (11th Cir. 2008) (appeal-waiver validity reviewed de novo)
- United States v. Bradley, 644 F.3d 1213 (11th Cir. 2011) (competency standard and deference to district court when experts conflict)
- United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993) (appeal waiver valid only if defendant knowingly and voluntarily waived rights; court must clearly question defendant or record must show full understanding)
- United States v. Buchanan, 131 F.3d 1005 (11th Cir. 1997) (colloquy must establish defendant understood nature and extent of appeal waiver)
- United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010) (sentencing court may consider hearsay if sufficiently reliable and defendant may rebut)
- United States v. Gordon, 231 F.3d 750 (11th Cir. 2000) (hearsay at sentencing is reliable when corroborated)
- United States v. Wilson, 183 F.3d 1291 (11th Cir. 1999) (similar rule on reliability of hearsay at sentencing)