United States v. McCoy, 071318 FED4, 17-4117
| Opinion Judge | DIAZ, Circuit Judge |
| Party Name | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEX LENARD MCCOY, Defendant-Appellant. |
| Attorney | James W. Kilbourne, Jr., DUNGAN, KILBOURNE & STAHL, PA, Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North... |
| Judge Panel | Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. |
| Case Date | July 13, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
Argued: March 22, 2018
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00273-FDW-DCK-3)
ARGUED:
James W. Kilbourne, Jr., DUNGAN, KILBOURNE & STAHL, PA, Asheville, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF:
R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
DIAZ, Circuit Judge
Alex Lenard McCoy pleaded guilty, pursuant to a plea agreement, to a federal drug trafficking conspiracy. In the agreement, McCoy waived his right to appeal his conviction and "whatever sentence is imposed," except on the basis of ineffective assistance of counsel and prosecutorial misconduct. Despite this waiver, McCoy now appeals, arguing that (1) a factual basis doesn't support his guilty plea, and (2) that the district court erred in its application of the Sentencing Guidelines to his case.
The government has moved to dismiss the appeal based on the waiver. McCoy responds that a challenge to the factual basis of a plea falls outside the scope of a valid waiver. We agree, but find that a factual basis supports his plea. And because McCoy's waiver is otherwise knowing and voluntary, it forecloses his remaining claims on appeal. We therefore grant the Government's motion to dismiss the appeal in part and affirm McCoy's conviction and sentence.
I.
In November 2015, a federal grand jury indicted Alex McCoy on four related drug charges. Count one charged McCoy with participating in a crack-cocaine trafficking conspiracy centered around Gaston County, North Carolina in violation of 21 U.S.C. §§ 841(a)(1) and 846, while the remaining three counts charged McCoy with distribution and possession of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
McCoy eventually agreed to plead guilty to count one in exchange for the government dismissing the three other charges and withdrawing information about a prior felony drug conviction. The plea agreement included a joint recommendation regarding the quantity of crack cocaine or "cocaine base" involved in the conspiracy along with an appellate waiver. Specifically, McCoy agreed to waive "all such rights to contest the conviction except for: (1) claims of ineffective assistance of counsel or (2) prosecutorial misconduct" or "otherwise to appeal whatever sentence is imposed with the two exceptions set forth above." J.A. 87.
The parties further stipulated to a factual basis signed by McCoy's lawyer and adopted by McCoy during his Rule 11 plea colloquy. This factual basis stated that "McCoy was a member of a conspiracy with others, in Gaston County . . . to distribute and to possess with intent to distribute cocaine base, commonly known as 'crack cocaine.'" J.A. 38. The document also provided that "[t]he amount of cocaine base ('crack cocaine') that was known to or reasonably foreseeable by the Defendant was at least eight hundred and forty (840) grams but less than two thousand eight hundred (2, 800) grams." J.A. 40.
McCoy's Rule 11 hearing was held before a magistrate judge on June 1, 2016. That morning, the government realized the plea agreement referred to cocaine, rather than cocaine base, when discussing the quantity of drugs involved in the conspiracy. After discussing the error with defense counsel, the government proposed "a pen and ink change to page 2 of the plea agreement" by adding the word base after cocaine to clarify that "what we're talking about is cocaine base" not "powder cocaine." J.A. 48. Defense counsel voiced no objection to the change and the court permitted the revision. The government and McCoy's lawyer initialed next to the change. McCoy did not.
The government then proceeded to summarize (incorrectly) the terms of the plea agreement, stating the minimum quantity of cocaine base (or crack cocaine) involved in the conspiracy was "at least 240 grams" when the minimum amount set forth in the plea agreement was in fact 840 grams. J.A. 49. After the government's summary, the magistrate judge engaged in the following colloquy with McCoy regarding the plea agreement, including the appellate waiver: THE COURT: . . . Do you understand those to be the terms of your plea agreement, and do you agree with those terms?
THE DEFENDANT: Yes, sir.
THE COURT: Has the right to appeal your conviction and sentence been expressly waived in this plea agreement?
THE DEFENDANT: Yes.
THE COURT: Has the right to challenge your conviction and sentence in a post-conviction proceeding also been waived in the plea agreement?
THE DEFENDANT: Yes.
THE COURT: Is that your signature on the plea agreement?
THE DEFENDANT: Yes, sir.
J.A. 50-51. McCoy also told the court that he had read, understood, and agreed with both the plea agreement and the factual basis.
The magistrate judge found the guilty plea to be knowing and voluntary and recommended the district court accept it. The magistrate judge then advised McCoy orally and in writing that he had fourteen days to object to his recommendation and that any untimely objection would be waived. McCoy also signed a written acknowledgment that he was in fact guilty of count one and that while the government had summarized the terms of the plea agreement in court he understood "that the written, filed Plea Agreement is the best statement of those terms, and therefore 'speaks for itself.'" J.A. 57. McCoy did not file any objections to the magistrate judge's findings or the Rule 11 proceeding.
A probation officer then prepared a presentence report ("PSR"). Relying on the terms of the plea agreement and stipulated facts, the PSR concluded that McCoy was responsible for between 840 and 2, 800 grams of crack cocaine. The PSR also found that McCoy maintained a premises for the purposes of manufacturing or distributing drugs, was an organizer or leader of a criminal enterprise involving five or more people, and possessed a firearm in connection with his drug dealing. McCoy filed repeated objections to these last three findings, but didn't object to or dispute the quantity of crack cocaine listed in the PSR. McCoy also wrote several letters complaining about his lawyer, which led to him receiving new counsel.
Following the appointment of new counsel, the district court granted a continuance so that McCoy's second attorney could review the evidence and explore whether or not to withdraw the guilty plea. However, McCoy didn't move to withdraw his guilty plea and his case proceeded to sentencing.
At the sentencing hearing, the district court confirmed that McCoy had read and understood the PSR and had been able to discuss any concerns with counsel. McCoy stated that counsel had answered his questions and that he had no remaining concerns. The court then turned to McCoy's plea colloquy and asked him if he remembered the various details of that proceeding. McCoy responded affirmatively, stated that he had answered all questions truthfully, would provide the same answers if asked again, and that he was in fact guilty of the charged conspiracy to distribute crack cocaine. McCoy's new counsel, who was not at the plea colloquy, also stated his belief that McCoy had understood the questions asked by the magistrate judge.
The court concluded that McCoy's guilty plea was knowing and voluntary and that McCoy fully understood the charge, potential penalties, and consequences of his plea. The district court also independently found there was a factual basis for the entry of the plea based on the stipulated factual basis and other information in the record. The court accepted McCoy's plea and adjudged him guilty.
Proceeding to the sentencing phase, the district court found that evidence supported McCoy's leadership and firearm enhancement. The court...
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