United States of America v. Andre G. Dewberry

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

1The Honorable Dean Whipple, United States District Judge for the Western

District of Missouri.

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

-2-

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

-3-

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 selfrepresentation;

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

(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 (1973)); see also United States v. Limely, 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.

-4-

United States, 138 S. Ct. 798, 804–05 (2018) (quoting Haring v. Prosise, 462 U.S.

306, 321 (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. 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 (1989)

(quoting Menna v. NY, 423 U.S. 61, 62 n.2 (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

-5-

v. Edwards, 554 U.S. 164 (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 selfrepresentation

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

transforms the defendant’s later decision to plead guilty into a per se involuntary

decision. As the Fourth Circuit explained, Hernandez’s rationale is based on the false

premise that the defendant who is denied his right to represent himself is forced to

either plead guilty or submit to an unconstitutional trial. Moussaoui, 591 F.3d at 280.

The premise is faulty because “if the defendant proceeded to trial and was convicted,

he could seek an appellate remedy for the constitutional violations he alleged.” Id.

In addition, we have noted that “if a defendant wishes to preserve his right to appeal,

he should enter a conditional plea of guilty, ‘reserving in writing the right to have an

appellate court review an adverse determination of a specified pretrial motion.’”

Limely, 510 F.3d at 827 (quoting Fed. R. Crim. P. 11(a)(2)).

More importantly, the approach used in Hernandez is inconsistent with

Supreme Court precedent. See Luce v. United States, 469 U.S. 38, 42 (1984) (holding

-6-

that in order to preserve a claim of improper impeachment the defendant is required

to testify at trial); Tollett, 411 U.S. at 267 (“[A] guilty plea represents a break in the

chain of events which has preceded it in the criminal process.”). That precedent

informs us that “case-related constitutional defects” are made “irrelevant to the

constitutional validity of the conviction” by a later guilty plea “[b]ecause the

defendant has admitted the charges against him.” Class, 138 S. Ct at 804–05 (quoting

Haring, 462 U.S. at 321). Hernandez’s approach turns the rule on its head by making

a defendant’s admission of guilt irrelevant because of an earlier purported caserelated

constitutional defect. Therefore, we join the majority of circuits and hold a

potential violation of the right to proceed pro se does not, in and of itself, render a

plea involuntary.

Based on the above analysis, we conclude Dewberry waived his right to bring

his Sixth Amendment claim unless he can show us on the specific facts of his case

that he did not enter the plea knowingly and voluntarily. Based on the current record,

we have no basis to reach such a conclusion.

At the change of plea hearing, the district court complied with Fed. R. Crim P.

11(b) in its colloquy with Dewberry, which is strong evidence the plea was knowing

and voluntary. The district court personally addressed Dewberry in open court and

made sure he knew and understood his rights and that he was waiving his trial rights

if his plea was accepted. The district court also went over the plea terms with

Dewberry and repeatedly questioned him to ensure the plea was voluntary and did not

result from force, threats, or coercion. This detailed record of questioning about

Dewberry’s understanding supports the district court’s finding he knowingly and

voluntarily entered the plea.

We therefore hold Dewberry waived his right to challenge the district court’s

decision to deny him his Sixth Amendment right to represent himself. Although the

district court may have violated Dewberry’s right to self-representation, Dewberry is

-7-

barred from bringing his appeal on this record. Therefore, we decline to address the

merits of this Sixth Amendment argument.

III. Conclusion

For the reasons set forth herein, we affirm.

KELLY, Circuit Judge, concurring in the judgment.

In my view, the record makes clear that the district court violated Dewberry’s

right to self-representation when it reappointed counsel to represent him. The

presence of that structural error may have rendered Dewberry’s guilty plea

involuntary. But because the current record is not fully developed on the second

issue, I would not decide it on direct appeal. I therefore concur in affirming the

judgment.

This court reviews de novo a district court’s refusal to allow a defendant to

represent himself. See United States v. LeBeau, 867 F.3d 960, 973 (8th Cir. 2017).

“A request to proceed pro se is constitutionally protected only if it is timely, not for

purposes of delay, unequivocal, voluntary, intelligent and the defendant is

competent.” Jones v. Norman, 633 F.3d 661, 667 (8th Cir. 2011) (cleaned up); see

also Faretta, 422 U.S. at 835–36. Here, the magistrate judge found that Dewberry’s

request to represent himself checked all of the Faretta boxes, and so he granted

Dewberry’s request. No one challenges that ruling. When the district court later

terminated Dewberry’s representation, it explained that it did so “to get this plea

worked out” and to “help [him] get ready for trial.” But these are not valid reasons

to bar a defendant from representing himself. See United States v. Smith, 830 F.3d

803, 810 (8th Cir. 2016) (“Defendants have a right to present unorthodox defenses

and argue their theories to the bitter end. . . . [F]ailure to respond to a proposed plea

agreement [does not] warrant denial of the right of self-representation at trial.”

-8-

(cleaned up)). Thus, the district court impermissibly denied Dewberry his right to

represent himself at trial.

That brings me to the only issue addressed by the court: whether Dewberry

waived his right to self-representation by pleading guilty. The denial of the right to

self-representation is a structural error. See United States v. Gonzalez-Lopez, 548

U.S. 140, 148–49 (2006); see also McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).

But it seems that structural errors “can still be waived.” Jackson v. Bartow, 930 F.3d

930, 934 (7th Cir. 2019) (“[T]he consequence of a ‘structural’ error is that it is not

subject to harmless-error review; but such errors can still be waived.” (citation

omitted)); see also Moussaoui, 591 F.3d at 280 n.12. So I agree with the court that

the outcome of Dewberry’s appeal hinges on whether his guilty plea was knowing

and voluntary. This is the sort of issue that is often better deferred to post-conviction

proceedings under 28 U.S.C. § 2255, as it usually involves facts outside the original

record. See United States v. Agboola, 417 F.3d 860, 864 (8th Cir. 2005); United

States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990). I see no reason to depart from

the usual rule here, as an invalid plea “is not readily apparent in the current record.”

Agboola, 417 F.3d at 864. But Dewberry is not barred from challenging the validity

of his guilty plea—or raising a claim of ineffective assistance of counsel—in a postconviction

proceeding.

Affirmed