United States v. Dewberry

• Decision Date: 27 August 2019
• Docket Number: No. 17-1649,17-1649
• Citation: 936 F.3d 803
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andre G. DEWBERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

936 F.3d 803

UNITED STATES of America, Plaintiff-Appellee,

v.Andre G. DEWBERRY, Defendant-Appellant.

No. 17-1649

United States Court of Appeals, Eighth Circuit.

Submitted: January 16, 2019

Filed: August 27, 2019

Rehearing and Rehearing En Banc Denied October 2, 2019

Christopher S. Swiecicki, Swiecicki & Muskett, LLC, Chesterfield, MO, argued (Laine Cardarella, Fed. Public Defender, Carie Allen, Asst. Fed. Public Defender, Rebecca L. Kurz, Research and Writing Atty., Kansas City, MO, on the brief), for appellant.

Andre G. Dewberry, Pekin, IL, pro se.

James C. (Curt) Bohling, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., Stefan C. Hughes, Asst. U.S. Atty., on the brief), for appellee.

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

Andre Dewberry pled guilty to being a felon in possession of a firearm. As required by the binding plea agreement, the district court¹ sentenced Dewberry to 60 months of imprisonment. Dewberry appeals, arguing he was denied his Sixth Amendment right to self-representation. We hold he waived the challenge by pleading guilty and accordingly affirm the judgment.

I. Background

In January 2015, the Kansas City, Missouri Police Department stopped a vehicle driven by Dewberry, who was a convicted felon. Police observed Dewberry exit the vehicle and toss a black handgun underneath. Police recovered a pistol from under the car.

A grand jury indicted Dewberry on one charge of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court appointed a public defender to represent Dewberry. Eventually, Dewberry requested permission to proceed pro se. The magistrate judge granted Dewberry’s request and appointed the same public defender as standby counsel. Dewberry later moved to have the district court appoint substitute counsel. The district court denied the motion, giving Dewberry three options: (1) continue to represent himself; (2) hire a new attorney; or (3) request that the public defender resume representation.

During a pretrial conference held days before the scheduled trial, after some back and forth with Dewberry regarding an evidentiary issue as it related to Dewberry’s defense strategy, the district court terminated Dewberry’s pro se representation and reappointed the public defender as counsel. Dewberry voiced his objection to the reappointment.

Before trial, Dewberry pled guilty to the charge in a plea agreement. The plea agreement included a binding term of 60 months of imprisonment under Fed. R. Crim. P. 11(c)(1)(C). The plea agreement also contained an appeal waiver, providing that Dewberry waived his right to appeal or collaterally attack a finding of guilt following the acceptance of this plea agreement. The appeal waiver included the following provision:

The defendant expressly waives his right to appeal his sentence, directly or collaterally, on any ground except claims of (1) ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An "illegal sentence" includes a sentence imposed in excess of the statutory maximum, but does not include less serious errors, such as misapplication of the [United States] Sentencing [Commission] Guidelines, an abuse of discretion, or an imposition of an unreasonable sentence.

The public defender represented Dewberry at the change of plea hearing. The district court accepted the plea after engaging in a Rule 11 plea colloquy to determine Dewberry’s plea was knowing, voluntary, and made after being advised of his trial and constitutional rights. The district court asked Dewberry three times if he had been threatened or coerced in any manner to cause him to enter into this plea, to which he answered no each time. The district court also read the appeal waiver and asked Dewberry if he understood it, to which Dewberry responded yes.

In the presentence investigation report, Dewberry’s United States Sentencing Commission Guidelines Manual ("Guidelines") range was calculated as 46 to 57 months of imprisonment. At the sentencing hearing, the district court formally accepted the plea agreement and sentenced Dewberry to the agreed-upon term of 60 months of imprisonment.

In March 2017, Dewberry filed a pro se document, which we treated as a Notice of Appeal. The public defender then filed an Anders brief, see Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), expressing her view the plea agreement prohibited an appeal of the issues on which Dewberry wished to proceed. However, the public defender also asserted the district court violated Dewberry’s Sixth Amendment right to proceed pro se.

We appointed Dewberry new counsel under the Criminal Justice Act and ordered the parties to brief the following issues: (1) whether Dewberry’s plea of guilty waived his ability to challenge the denial of his Sixth Amendment right to self-representation; and (2) whether Dewberry’s conduct warranted the district court’s denial of self-representation. In its briefing, the government conceded Dewberry’s conduct did not justify the district court’s denial of Dewberry’s right to proceed pro se, but argued the reappointment of counsel was warranted because Dewberry did not unequivocally assert his right to self-representation when asked by the district court during the pretrial evidentiary hearing. The government also argued Dewberry waived his right to appeal by pleading guilty.

II. Analysis

Before considering whether the district court violated Dewberry’s Sixth Amendment right to self-representation, see Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), we will address whether he waived his right to appeal the district court’s alleged denial of this right by pleading guilty. We conclude Dewberry waived his right to appeal this claim.

"A valid guilty plea ... waives a defendant’s ‘independent claims relating to the deprivation of constitutional rights that occurred prior to’ pleading guilty." United States v. Pierre , 870 F.3d 845, 848 (8th Cir. 2017) (quoting Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ); see also United States v. Limley , 510 F.3d 825, 827 (8th Cir. 2007) (stating a "valid guilty plea is an admission of guilt that waives all non-jurisdictional defects and defenses"). "[C]ase-related constitutional defects" are made "irrelevant to the constitutional validity of the conviction" by a guilty plea "[b]ecause the defendant has admitted the charges against him." Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 804–05, 200 L.Ed.2d 37 (2018) (quoting Haring v. Prosise , 462 U.S. 306, 321, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983) ).

However, a guilty plea does not waive all claims. A waiver does not occur, for example, when the defendant’s plea was not made intelligently, voluntarily, and with the advice of counsel. See Tollett , 411 U.S. at 265, 93 S.Ct. 1602. Nor does a guilty plea waive a defendant’s right to facially challenge the Government’s ability to constitutionally charge him in the first place. See Class , 138 S. Ct. at 805–06 (holding a guilty plea did not waive an argument that the government did not have the power to criminalize the charged and admitted conduct); United States v. Broce , 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (quoting Menna v. NY , 423 U.S. 61, 62 n.2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) ) ("[A] plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.").

The first task before us then is to decide whether the Sixth Amendment right to represent oneself is the type of right that is waived by a voluntary and intelligent guilty plea or whether it fits into an exception. Although we have never answered this question directly, other circuits have.

The majority of the circuits to reach the issue have held a defendant waives the right to bring a claim for a potential violation of the right to proceed pro se by pleading guilty. See United States v. Moussaoui , 591 F.3d 263, 280 (4th Cir. 2010) (holding a defendant’s guilty plea foreclosed his Faretta challenge); Werth v. Bell , 692 F.3d 486, 497 (6th Cir. 2012) (same); Gomez v. Berge , 434 F.3d 940, 942–43 (7th Cir. 2006) (same); United States v. Montgomery , 529 F.2d 1404, 1406–07 (10th Cir. 1976) (holding the same and observing a contrary conclusion would "open the door to manipulations and gamesmanship").

The only circuit to hold otherwise is the Ninth Circuit. See United States v. Hernandez , 203 F.3d 614, 627 (9th Cir. 2000) (overruled on other grounds by Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) ). In Hernadez , the Ninth Circuit held that because the district court wrongly denied the defendant’s request to represent himself, it rendered his guilty plea involuntary. 203 F.3d at 627. The court reasoned the "district court’s refusal to allow [the defendant] to exercise the right of self-representation forced him to choose between pleading guilty and submitting to a trial the very structure of which would be unconstitutional." Id. at 626. This choice placed "unreasonable constraints" on his decision to plead guilty. Id . The court stated: "When a defendant is offered a choice between pleading guilty and receiving a trial that will be conducted in a manner that violates his fundamental Sixth Amendment rights, his decision to plead guilty is not voluntary." Id . at 627. The court reasoned that the decision was not voluntary because "he ha[d] not been offered the lawful alternative—free choice—the Constitution requires." Id.

Dewberry urges us to follow an approach nearly identical to the one used in Hernandez and hold his guilty plea was involuntary based on the earlier denial of his right to represent himself. But we see no basis to conclude a district court’s improper denial of a defendant’s Sixth Amendment right to self-representation categorically...