UNITED STATES of America, Plaintiff-Appellee, v. Terry SHEPHERD, Defendant-Appellant.
No. 08-3135.
United States Court of Appeals, Sixth Circuit.
Feb. 4, 2011.
945
We therefore AFFIRM the decision of the district court.
PER CURIAM.
Defendant Terry Shepherd pleaded guilty to one count of using а firearm during and in relation to a crime of violence,
The defendant was arrested and indicted for multiple offenses, including possession with intent to distribute less than five grams of cocaine base and use of a firearm during and in relation to a crime of vio-lence. Shepherd eventually entered into an agreement with the government, allow-ing him to plead guilty to the firearms offense and the drug offense and stipulat-ing that he qualified for sentencing as a career offender. Even after the applica-tion of a three-level reduction for accep-tance of rеsponsibility, the defendant faced sentencing pursuant to an advisory guide-line range of 272-319 months.
In the plea agreement, however, the government stated that it would recom-mend to the district court an advisory guideline range of 188-235 months if Shep-herd provided information to the prosecu-tion regarding other individuals involved in the criminal activity. “The defendant fur-ther agree[d] that a total term of imprison-mеnt of 188 months would represent a reasonable sentence for the case, consider-ing the sentencing factors outlined in Title 18, Section 3553(a), United States Code.” Consequently, at sentencing, the govern-ment moved, pursuant to section 5K1.1 of the United States Sentencing Guidelines,
Shepherd first contends that the district court should have set aside his guilty plea, even without a request to do so, on the ground that “[he] was incompe-tent when he entered into the plea agree-ment due to a lack of understanding of the proceedings.” Because the defendant did not raise this issue in the district court in the first instance, we review such a chal-lenge only for plain error. See, e.g., United States v. Thomas, 11 F.3d 620, 629 (6th Cir. 1993). In Thomas, we set out the inquiries that must be undertaken in a plain-error analysis:
First, we are to consider whether an error occurred in the district court. Ab-sent any error, our inquiry is at an end. Howеver, if an error occurred, we then consider if the error was plain. If it is, then we proceed to inquire whether the plain error affects substantial rights. Finally, even if all three factors exist, we must deсide whether the plain error affecting substantial rights seri-ously affected the fairness, integrity or public reputation of judicial proceedings.
Id. at 630. See also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Well-established principles of due pro-cess hоld that a court should not accept a defendant‘s guilty plea unless the defen-dant enters the plea “competently and in-telligently.” See Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). The standard of “competence” re-quired to plead guilty is the same standard used by courts to determine whether an individual is fit to stand trial, that is, “whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational under-standing and has a rational as well as factual understanding of the proceedings against him.” Id. (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (internal quotation marks omitted)). Of course, prior to ac-cepting a guilty plea, a district cоurt must also “satisfy itself that the waiver of his constitutional rights is knowing and volun-tary.” Id. at 400, 113 S.Ct. 2680 (citations omitted).
In this matter, the district judge did not err, much less plainly err, in deter-mining that the defendant was competent to plead guilty. The judge patiently and thoroughly questioned Shepherd about his alertness on the day of the plea hearing, any questions he might have had about the charges against him, the possible punish-ments to be imposed, the constitutionаl rights that would be waived by a plea of guilty, the contents of the plea agreement, and his educational and health back-grounds. Specifically, the court ascer-tained that Shepherd drоpped out of school in the ninth grade but was pursuing his GED, that Shepherd was not taking any medication, that he had not received treatment for his learning disability since he was young, that he read the plea agree-ment himself, and that he conferred with his attorney about every provision of the agreement. The district judge also went through the plea agreement with Shep-herd, provision by provision, sаtisfying herself through questioning that the defen-dant understood the contents of the docu-ment.
During the sentencing hearing, Shep-herd did claim that he had some difficulty reading. Nevertheless, he conceded that
Shepherd clearly displayed “sufficient present ability to consult with his lawyer.” Throughout the guilty-plea hearing and the sentencing hearing, in fact, the defen-dant took the opportunity tо confer with counsel, both when prompted to do so by the district judge and on his own initiative. Furthermore, the appellate record pres-ents no indication whatsoever that Shep-herd did not understand the proceedings or that his plea was anything other than knowing and voluntary. Neither Shep-herd nor his attorney stated that he was not ultimately made aware of the ramifica-tions of all plеa provisions or that he did not understand the rights he was waiving.
In the absence of any evidence or indica-tion that Shepherd was unable to consult with his attorney or understand the advice offered tо him, no error, plain or other-wise, was committed by the district judge in failing to declare on her own initiative that the defendant was incompetent to en-ter his guilty pleas in this case. This challenge to the defendant‘s convictions is without merit.
Shepherd also alleges error in the district court‘s imposition of the 188-month sentence. In the plea agreement, however, Shepherd expressly and volun-tаrily waived his right to appeal his sen-tence, either directly or collaterally. The only allowable exceptions to the waiver were claims that punishment was imposed in excess of thе applicable statutory maxi-mum or in excess of 188 months, claims of ineffective assistance of counsel, and claims of governmental misconduct. Be-cause Shepherd does not raise an appellate issue falling within the parameters of the listed exceptions, and because the record indicates that the defendant knowingly and voluntarily entered into the plea agree-ment, Shepherd has waived these sentenc-ing issues, and we may not now address them on appeal.
Finally, in a supplemental appellate brief, the defendant also argues that hе is entitled to re-sentencing under this court‘s holding in United States v. Almany, 598 F.3d 238 (6th Cir. 2010), and to a retroac-tive reduction in his sentence as a result of the enactment of section 2(a) of the Fair Sentencing Act of 2010, Pub.L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). But, be-cause the two supplemental issues raise additional challenges to a sentence that was contemplated by the plea agreement, Shepherd‘s waiver of his appellate rights in that agreement would also serve to insu-late these issues from appellate review.
Even if this court were to address the supplemental claims, however, Shepherd would not be entitled to the relief he seeks. First, the United States Supreme Court granted certiorari in Almany, ___ U.S. ___, 131 S.Ct. 637, 178 L.Ed.2d 471 (2010), and vacated our prior opinion in that case. Upon remand, in light of the Supreme Court‘s ruling in Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), we restored Almany‘s five-year, cоnsecutive firearm sentence be-cause no other statutory provision called for a greater minimum sentence for the conduct proscribed in
Likewise, the provisions of the Fair Sentencing Act of 2010 оffer Shepherd no relief. Pursuant to section 2(a) of the legislation,
For the reasons set out above, we AF-FIRM the judgment of the district court.