United States v. Derrick McCaskey , 521 F. App'x 98 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4649
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK ALAN MCCASKEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (2:10-cr-00016-BO-1)
Argued: January 30, 2013 Decided: April 5, 2013
Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.
Affirmed in part; vacated in part by unpublished opinion.
Judge Gregory wrote the opinion, in which Chief Judge Traxler
and Judge Duncan joined.
ARGUED: Neal Gary Rosensweig, NEAL ROSENSWEIG, P.A., Hollywood,
Florida, for Appellant. Yvonne Victoria Watford-McKinney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
Derrick Alan McCaskey received a combined sentence of 200
months’ imprisonment following his guilty plea to one count of
conspiracy and possession with intent to distribute drugs, in
violation of 21 U.S.C. § 846, and one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922. On
appeal, McCaskey challenges the district court’s compliance with
the requirements of Federal Rule of Criminal Procedure 11, and
notwithstanding the presence of an appeal waiver, asks us to
consider the reasonableness of his sentence. For the reasons
that follow, we affirm in part and vacate in part McCaskey’s
conviction and sentence.
I.
A.
As a result of extensive drug-related criminal activities,
McCaskey was charged with multiple counts in a fifteen-count
multi-defendant superseding indictment. Pursuant to a written
plea agreement, McCaskey pled guilty to two counts--Count One,
which charged him with conspiracy, and possession with intent,
to distribute drugs, in violation of 21 U.S.C. § 846; 1 and Count
1
McCaskey was held accountable for a drug amount with a
total marijuana equivalency of 8,556 kilograms. The actual
drugs consist of cocaine base (crack), dihydrocodeinone
(Continued)
3
Fourteen, which charged him with being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922. In turn, the
Government agreed to dismiss six other drug charges against
McCaskey. The written plea agreement contained an express
waiver of McCaskey’s right to appeal the sentence imposed by the
district court. 2
At the plea hearing required by Rule 11, McCaskey was
represented by counsel, and informed the court that he discussed
his case with his counsel and was satisfied with his counsel’s
representation. McCaskey told the court that he was 22 years
old and had obtained a GED. The district court confirmed that
McCaskey had read the plea agreement and had spoken with his
(Vicodin), 3,4-methylenedioxymethamphetamine (MDMA or ecstasy),
and marijuana.
2
The waiver provision in the plea agreement states:
The Defendant agrees . . . [t]o waive all rights
conferred by 18 U.S.C. § 3742 to appeal whatever
sentence is imposed, including any issues that
relate to the establishment of the advisory
Guideline range, reserving only the right to
appeal from a sentence in excess of the
applicable advisory Guideline range that is
established at sentencing, and further waive all
rights to contest the conviction or sentence in
any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting an appeal
or motion based upon grounds of ineffective
assistance of counsel or prosecutorial misconduct
not known to the Defendant at the time of the
Defendant’s guilty plea.
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counsel about the agreement. The court summarized the charges
in the superseding indictment and the maximum penalties for each
count. The court also summarized the terms of the plea
agreement and advised McCaskey of the rights he would forfeit by
pleading guilty--the right to have his case tried by a jury, the
right at trial to confront and cross-examine the witnesses
against him, and the waiver of these rights if the court accepts
the plea. McCaskey responded that he understood he was giving
up these rights. McCaskey denied that “anyone threatened [him]
or forced [him] to [plead guilty],” and affirmed that he was
“voluntarily” pleading guilty. The district court did not
expressly ascertain whether McCaskey understood the implications
of the appeal waiver in the plea agreement. The court heard
from the Government the facts supporting Counts One and
Fourteen, found that there was a factual basis for the plea, and
that the plea was voluntary. Consequently, the court accepted
McCaskey’s plea as to Counts One and Fourteen, and dismissed the
other charges against him.
Subsequently, a presentence investigation report was
prepared which calculated McCaskey’s applicable Sentencing
Guidelines range based on a total offense level of 33 and a
criminal history category of VI as 188 to 235 months’
imprisonment, with a statutory maximum of 120 months on Count
Fourteen. At the sentencing hearing, the district court
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sentenced McCaskey to a total term of imprisonment of 200 months
consisting of 200 months’ imprisonment on Count One and a
concurrent 120-month sentence on Count Fourteen.
B.
McCaskey timely appealed arguing that: (1) his plea was
not intelligent, knowing, and voluntary because the district
court failed to comply with the procedural requirements of Rule
11, and in tandem, the appeal waiver in the plea agreement is
unenforceable; and (2) that his total 200-month sentence is
unreasonable. The Government moved to dismiss the appeal,
arguing that McCaskey’s plea was knowing and voluntary and his
sentencing challenge fell within the scope of the waiver of his
right to appeal contained in the plea agreement.
McCaskey filed an opposition to the motion to dismiss and
moved to file a supplemental brief. He argued that the record
failed to establish that he had previously been convicted for a
crime punishable by a term of imprisonment of more than one
year. Consequently, McCaskey argued, in light of our recent
decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), he could not have been convicted of being a
felon in possession of a firearm. He asserted the guilty plea
was invalid and that the waiver did not bar his appeal. The
Government did not oppose the request for supplemental briefing.
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We granted leave to file the supplemental brief, but
deferred ruling on the Government’s motion to dismiss, directing
the Government to respond to the merits of the appeal. In the
Government’s response on the merits, it repeated its arguments
in the motion to dismiss, but conceded that pursuant to Simmons,
McCaskey’s conviction and sentence as to Count Fourteen must be
vacated. We now reach the merits of the appeal and have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We first address the adequacy of the Rule 11 hearing, then
we turn to the enforceability of the appeal waiver, and lastly,
in light of the Government’s concession, we consider the merits
of the appeal as to Count Fourteen. Since McCaskey did not seek
to withdraw his guilty plea in the district court, he did not
preserve the errors as to the adequacy of the Rule 11 hearing
and the enforceability of the plea waiver, thus our review is
for plain error. United States v. Hairston, 522 F.3d 336, 341
(4th Cir. 2008); United States v. Martinez, 277 F.3d 517, 527
(4th Cir. 2002). To satisfy the plain error standard, McCaskey
must show: (1) an error occurred; (2) the error was plain; and
(3) the error affected his substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). In addition, we need
not exercise discretion to correct the error “unless the error
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seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
alterations omitted).
A.
At a required Rule 11 hearing, the district court must
“inform the defendant of, and ensure that he understands, the
nature of the charges against him and the consequences of his
guilty plea.” Hairston, 522 F.3d at 340 (citing United States
v. Damon, 191 F.3d 561, 564 (4th Cir. 1999)). To ensure a plea
is voluntary, a district court “must address the defendant
personally in open court and determine that the plea is
voluntary and did not result from force, threats, or promises
(other than promises in a plea agreement).” Fed. R. Crim. P.
11(b)(2). Among other things, the district court must advise
and question the defendant regarding his right to a jury trial,
right to confront the witnesses against him, the nature of each
charge to which the defendant is pleading, and any maximum
penalty the defendant faces. Fed. R. Crim. P. 11(b).
Applying these principles, upon review of the totality of
the circumstances in the record, we conclude that the district
court substantially complied with the requirements of Rule 11,
and McCaskey knowingly and voluntarily pled guilty to Counts One
and Fourteen of the superseding indictment. McCaskey contends
otherwise, arguing that the district court failed to: mention
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the waiver of his right to have a jury determine the existence
and applicability of his prior convictions; inform him that any
estimate of his sentence is not binding; advise him the court
would take the advisory guidelines into account; and apprise him
that relevant conduct would be considered in determining his
sentence. Even assuming the district court erred by failing to
act as McCaskey specifies, the court’s omissions did not affect
McCaskey’s substantial rights because under the state of the law
at the time of the hearing, the record supports McCaskey’s
convictions for Counts One and Fourteen.
McCaskey makes much of the fact that had the district court
complied with his version of the requirements of Rule 11, he
would not have pled guilty to Count Fourteen, a charge for which
he could not presently be convicted. McCaskey overlooks the
fact that at the time of the hearing, when McCaskey pled guilty
to being a felon in possession of a firearm, there was no
indication that the facts did not support the conviction. The
district court operated in a pre-Simmons world, where under
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), a
federal defendant could be convicted of being a felon in
possession of a firearm, even though none of his prior state
convictions amounted to a “felony”--a crime punishable by more
than one year imprisonment. Thus, at the time, even if the
district court’s compliance with Rule 11 was defunct, the
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omissions did not affect McCaskey’s substantial rights because
under the then state of the law, he could have been convicted of
being a felon in possession of a firearm. Accordingly, we
conclude that based on the totality of the circumstances, even
assuming the district court failed to comply with the
requirements of Rule 11, the omissions did not affect McCaskey’s
substantial rights and his plea was entered voluntarily.
B.
We also find that McCaskey knowingly and voluntarily waived
his right to appeal the sentence imposed. We have held that an
appeal “waiver is not knowingly or voluntarily made if the
district court fails to specifically question the defendant
concerning the waiver provision of the plea agreement during the
Rule 11 colloquy and the record indicates that the defendant did
not otherwise understand the full significance of the waiver.”
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)
(citation omitted). The validity of a waiver is “‘evaluated by
reference to the totality of circumstances.’” United States v.
Blick, 408 F.3d 162, 169 (4th Cir. 2005) (quoting United States
v. General, 278 F.3d 389, 400 (4th Cir. 2002). If the waiver is
knowing and intelligent, and the issue on appeal falls within
the scope of the waiver, we will enforce the waiver. United
States v. Pointdexter, 492 F.3d 263, 270 (4th Cir. 2007).
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The record indicates that the district court failed to
inquire expressly whether McCaskey understood the waiver
provision. Nonetheless, we find that McCaskey fully understood
the significance of the waiver. At the time of the plea
hearing, McCaskey was a 22-year old with a GED. He informed the
district court that he was able to read, write, speak and
understand English. The written plea agreement as a whole, and
particularly the appeal waiver, is clear. McCaskey and his
counsel signed the written agreement acknowledging that he
understood the terms of the plea and informed the district court
that he understood the rights he was giving up. Thus, although
the district court failed to inquire as to McCaskey’s
comprehension of the waiver, because we find that McCaskey fully
understood the consequences of the waiver, and there is no
indication that McCaskey would not have pled otherwise, we find
that the error did not affect his substantial rights.
Accordingly, the appeal waiver is valid.
McCaskey’s challenge to the reasonableness of his sentence
falls within the scope of the valid appeal waiver. In his plea
agreement, McCaskey waived his right to appeal any sentence
imposed by the district court that fell within the applicable
guideline range. McCaskey’s 200-month sentence on Count One
falls within his advisory guideline range of 188 to 235 months’
imprisonment, and the concurrent 120-month sentence on Count
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Fourteen is the statutory maximum sentence. As McCaskey’s
sentence falls within the applicable guideline range, we hold
that McCaskey waived his right to appeal the reasonableness of
his sentence.
C.
Notwithstanding the validity of the plea and enforceability
of the appeal waiver, the Government seeks to enforce the appeal
waiver selectively, conceding that Count Fourteen must be
vacated, but seeking enforcement of the appeal waiver on Count
One. We believe the Government can so proceed. See United
States v. Brock, 211 F.3d 88, 90 n.1, 92 n.6 (4th Cir. 2000)
(reviewing an argument that fell within the scope of a waiver,
but refraining from reviewing another argument which also fell
within the waiver because the Government sought enforcement as
to the latter but not the former argument). In light of the
Government’s posture, we turn to the merits of the appeal of
Count Fourteen.
Although the Government concedes that McCaskey’s conviction
and sentence must be vacated in light of our decision in
Simmons, 649 F.3d 237, this concession does not necessarily end
our inquiry, as we must satisfy ourselves that vacatur is
warranted. See United States v. Rodriguez, 433 F.3d 411, 414
n.6 (4th Cir. 2006).
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To qualify as a predicate offense under 18 U.S.C. § 922(g),
for being a felon in possession of a firearm, the prior
conviction must have been “punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g). The predicate
offenses for McCaskey’s firearm count arise from a consolidated
sentence of 6 to 8 months that McCaskey received in 2006 on
three North Carolina convictions--breaking and entering a motor
vehicle, possession with intent to sell and deliver marijuana,
and manufacturing marijuana, in violation of North Carolina
General Statutes §§ 14-56, 90-95. As stated in McCaskey’s 2006
Judgment and Commitment, each of these offenses are Class I
felonies, and because McCaskey was sentenced within the
presumptive range, the maximum sentence he could have received
was 8 months’ imprisonment. Because the prior convictions fail
to qualify as a prior felony for purposes of being a felon in
possession of a firearm, we vacate McCaskey’s conviction and
sentence on Count Fourteen. We note that McCaskey’s 200-month
sentence on Count One is unaffected by this disposition because
his 120-month sentence on Count Fourteen was to run concurrently
with the sentence on Count One.
III.
For the reasons stated above, we grant in part the
Government’s motion to dismiss the appeal as it relates to Count
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One, but deny it as to Count Fourteen. Additionally, we affirm
McCaskey’s sentence on Count One, but vacate his conviction and
sentence as to Count Fourteen.
AFFIRMED IN PART;
VACATED IN PART
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