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United States v. Dewberry

United States Court of Appeals, Eighth Circuit

August 27, 2019

United States of America Plaintiff - Appellee
v.
Andre G. Dewberry Defendant-Appellant

          Submitted: January 16, 2019

          Appeal from United States District Court for the Western District of Missouri - Western Division

          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 court[1] 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 (1967), expressing her view the plea agreement prohibited an appeal of the issues on which Dewberry wished to proceed. However, the public defender also ...


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