United States v. Charles Edward Cox , 490 F. App'x 248 ( 2012 )

Case: 12-10408 Date Filed: 09/20/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10408
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00295-JHH-HGD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES EDWARD COX,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(September 20, 2012)
Before CARNES, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Charles Edward Cox appeals his conviction for possession of a firearm as a
Case: 12-10408 Date Filed: 09/20/2012 Page: 2 of 3
convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that his appeal
waiver, and therefore his guilty plea, was not knowing and voluntary because the
district court did not explain to him that, through the appeal waiver in his plea
agreement, he was waiving his right to make a claim of ineffective assistance of
counsel. He suggests that this requires us to set aside his conviction.
Ordinarily, we review the voluntariness of a guilty plea, as well as whether a
defendant knowingly and voluntarily waived his right to appeal, de novo. United
States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). However, if a defendant
fails to object to a deficiency in the plea colloquy, we review only for plain error.
United States v. Moriarty, 429 F.3d 1012, 1018–19 (11th Cir. 2005). The record
in this case shows that Cox did not bring to the district court’s attention his
concern about his understanding of the appeal waiver. Although he did write a
letter to the district court after his guilty plea, and the court construed that filing as
a motion to withdraw the plea, that document did not mention the alleged failure
on the part of the district court to ensure that Cox was aware of the full
significance of the appeal waiver. Thus, Cox’s claim is subject to plain error
review.
To prevail under this standard, a defendant must show that the district court
committed an error that, among other things, affected his substantial rights.
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United States v. Brown, 586 F.3d 1342, 1345 (11th Cir. 2009). In the context of
an alleged deficiency in the plea colloquy, this “means a reasonable probability
that, but for the error, [the defendant] would not have entered the plea.” Id.(quotation marks omitted). Here, we need not address the question of whether the
district court properly ensured that Cox was aware of the full significance of the
appeal waiver. Even if we were to conclude that it did not, Cox has not stated that
he might not have pleaded guilty. Cox has thus failed to demonstrate that his
conviction must be vacated.
Cox suggests in closing that the appeal waiver should be severed. But the
only argument that Cox has made to challenge his conviction in this direct appeal
is that his plea of guilty was not knowing and voluntary. The government has not
asserted that this claim is barred by the appeal waiver; instead, it has
acknowledged that such a claim can be raised. Thus, there remains no claim in
this direct appeal that the government either could say or has said is barred by the
appeal waiver. Cf. Bushert, 997 F.2d at 1353–54 (severing the waiver and
adjudicating the merits of the defendant’s remaining claims of error). This being
the case, it is not necessary for us to decide whether the waiver should be severed.
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
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