Submitted: January 16, 2019
from United States District Court for the Western District of
Missouri - Western Division
GRUENDER, KELLY, and GRASZ, Circuit Judges.
Dewberry pled guilty to being a felon in possession of a
firearm. As required by the binding plea agreement, the
district court 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.
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.
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.
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.
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
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.
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.
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
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 ...