                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4768


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

OWEN RENARDO BOWEN,

                Defendant - Appellant.



                             No. 11-5010


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DONNELL DEMETRIUS STANFORD, a/k/a D,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge.     (5:09-cr-00202-BO-5); James C. Dever, III,
Chief District Judge. (5:09-cr-00202-D-3)


Submitted:   July 30, 2012                 Decided:   August 7, 2012


Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
No. 11-4768, dismissed in part, affirmed in part, No. 11-5010,
affirmed by unpublished per curiam opinion.


Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina;
Ronald Cohen, Wilmington, North Carolina, for Appellants.
Thomas   G.  Walker,   United   States   Attorney,   Jennifer   P.
May-Parker,   Kristine   L.   Fritz,   Assistant   United   States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               In these consolidated appeals, Owen Bowen appeals his

conviction          and    135-month       sentence     following        his     guilty   plea

pursuant       to    a     plea    agreement      to   one    count      of    conspiracy    to

possess with intent to distribute and to distribute more than

fifty grams of cocaine base and more than 500 grams of cocaine,

in violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2012)

and 21 U.S.C. § 846 (2006) (No. 11-4768), and Donnell Demetrius

Stanford       appeals           his     convictions       and    concurrent        360-month

sentences following his guilty plea to one count of conspiracy

to possess with intent to distribute and to distribute more than

fifty grams of cocaine base and more than 500 grams of cocaine,

in violation of 21 U.S.C.A. § 841(a)(1) and 21 U.S.C. § 846, and

one    count    of        possession      with    intent     to   distribute       more   than

fifty    grams       of     cocaine       base   and   a     quantity     of     cocaine,    in

violation       of        21     U.S.C.A.       § 841(a)(1)       (No.        11-5010).     The

Government argues that Bowen’s appeal of both his conviction and

sentence is foreclosed by the waiver of appeal rights in his

plea agreement and that Stanford’s appeal is without merit.                                  In

appeal No. 11-4768, we dismiss in part and affirm in part.                                   In

appeal No. 11-5010, we affirm.

               A criminal defendant may waive the right to appeal if

that    waiver       is        knowing    and    intelligent.         United       States    v.

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).                                 Generally, if

                                                 3
the district court fully questions a defendant regarding the

waiver of his right to appeal during a plea colloquy performed

in accordance with Fed. R. Crim. P. 11, the waiver is both valid

and enforceable.        United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).        Whether a defendant validly waived his right

to appeal is a question of law this court reviews de novo.

United    States   v.   Blick,       408    F.3d       162,    168    (4th   Cir.      2005).

Where the Government seeks to enforce an appeal waiver and there

is no claim that the Government breached its obligations under

the plea agreement, this court will enforce the waiver if the

record     establishes        that    (1)        the     defendant       knowingly        and

intelligently agreed to waive the right to appeal; and (2) the

issue being appealed is within the scope of the waiver.                                Id. at

168 & n.5.

            Upon review of the record and the parties’ briefs, we

conclude that Bowen knowingly and voluntarily waived the right

to appeal his 135-month sentence.                      Accordingly, we dismiss the

portion    of   Bowen’s   appeal       challenging            the    imposition     of    his

sentence.

            A   straightforward            reading      of     the    language      of    the

appellate waiver provision of Bowen’s written plea agreement,

however,     belies     the    Government’s             contention      that      it     also

forecloses Bowen’s right to challenge his conviction on direct

appeal.     Nevertheless, we decline to reach the merits of Bowen’s

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challenge         to    the     district    court’s             denial      of     his     motion   to

dismiss the indictment as the claimed error was waived by virtue

of Bowen’s guilty plea.                   “When a [criminal] defendant pleads

guilty,       he        waives     all     nonjurisdictional                     defects     in     the

proceedings         conducted      prior     to       entry          of    the    plea.”      United

States       v.        Bundy,     392    F.3d         641,       644        (4th     Cir.     2004).

A defendant’s guilty plea “represents a break in the chain of

events       which       has     preceded        it     in       the        criminal       process.”

Tollett v.         Henderson,      411     U.S.       258,      267       (1973).        “Thus,     the

defendant who has pled guilty has no non-jurisdictional ground

upon which to attack [a] judgment except the inadequacy of the

plea    or    the      [G]overnment’s       power          to    bring       any    indictment      at

all.”     United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir.

2010) (internal quotation marks and citation omitted).

               Bowen’s        valid     guilty        plea      thus       waives    his    argument

challenging the district court’s denial of his motion to dismiss

the indictment on the basis of alleged prosecutorial misconduct.

Accord United States v. Carr, 303 F.3d 539, 542-43 (4th Cir.

2002)        (noting       that       defects         in        an        indictment        are     not

jurisdictional).               Accordingly, in appeal No. 11-4768, we also

affirm the district court’s judgment in part.

               Turning to Stanford’s appeal, he argues first that his

guilty plea was involuntary due to the district court’s denial

of his requests to substitute counsel, exertion of pressure for

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a guilty plea, and coercive behavior.                               We conclude that this

argument is without merit.

             This    court        will     not       find       a     guilty     plea    to    be

involuntary        where     there       has        not    been          “a   ‘breakdown’      of

attorney-client          communication          so        great       that     the     principal

purpose of the appointment—the mounting of an adequate defense

incident to a fair trial—has been frustrated.”                                United States v.

Smith, 640 F.3d 580, 582, 588, 593 (4th Cir.), cert. denied,

132 S. Ct. 430 (2011).               However, even if such a breakdown in

communication occurs, this court has explained that,

      after granting one or more substitution motions a
      court may well decline to grant further motions if it
      finds that yet another substitution would not remedy
      the problem. In such a case, it cannot be said that a
      defendant did not have the Assistance of Counsel for
      his defen[s]e, though defendant’s obstinacy may have
      frustrated it.

Id. at 591 (internal quotation marks and citation omitted).

             After       review     of    the       record,         we    conclude     that   the

district     court’s       denial    of    Stanford’s               motions     to    substitute

counsel    did     not    deprive    him       of    the    meaningful          assistance     of

counsel.     The record makes clear that Stanford’s conflict with

his appointed counsel stemmed from his own obstinacy and that

providing     Stanford       with        substitute         counsel           would   not     have

lessened     his     obstinacy       or     improved            his      assessment     of    his

circumstances.           Accord United States v. DeTemple, 162 F.3d 279,

289   (4th   Cir.        1998)    (stating          that    a       “[district]       court   can

                                                6
properly refuse a request for substitution of counsel when the

defendant’s       own    behavior       creates         the     problem”).           Further,

Stanford’s assertions that the district court exerted “pressure”

on him to plead guilty and acted in an “inherently coercive”

manner find no support in the record.                      Because the prerequisites

to   Stanford’s     claim   of     an    involuntary           guilty      plea    fail,    the

claim necessarily fails, and we therefore reject it.

            Stanford also raises a number of challenges to his

360-month sentence.             This court examines the district court’s

sentencing        determinations             “under        an        abuse-of-discretion

standard,    which      translates       to       review      [of    the    sentence]       for

reasonableness.”          United       States      v.    Mendoza-Mendoza,           597    F.3d

212, 216 (4th Cir. 2010) (internal quotation marks omitted).

Stanford’s    challenges         to    the    propriety         of    his    sentence       are

raised for the first time on appeal.                          This court reviews such

challenges    for       plain    error       only.         United       States     v.     Lynn,

592 F.3d 572, 576-77 (4th Cir. 2010).

            Stanford      argues       that    the      district      court       effectively

convicted him of crimes not charged by the grand jury or proved

in   a   manner    consistent         with    the    requirements           of    notice,    in

violation of the Fifth and Sixth Amendments.                            This argument is

meritless.        As long as a district court sentences a defendant

within the statutory maximum authorized by the jury’s findings

or his guilty plea, the court can consider facts it finds by a

                                              7
preponderance       of    the    evidence    to   exercise    its    discretion    in

determining     the       appropriate       sentence   within       that   maximum.

United States v. Grubbs, 585 F.3d 793, 798-803 (4th Cir. 2009);

United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008);

United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007).

Stanford’s guilty plea subjected him to a maximum sentence of

life in prison on each count.                   He received concurrent prison

terms of 360 months based on facts found by the district court

by a preponderance of the evidence.                 The court’s consideration

of   these    facts      in     determining     Stanford’s    sentence     did    not

violate his constitutional rights.

             Stanford also raises challenges directed specifically

at the district court’s calculation of his total offense level

under the U.S. Sentencing Guidelines Manual (2010) based on its

reliance on statements in the presentence report (“PSR”) and the

testimony      of        the     Government’s       witness     at     sentencing.

Specifically, Stanford contends that his right under the Sixth

Amendment to confront witnesses against him was violated because

the court considered testimonial hearsay present in both the PSR

and the testimony of the witness.                 This contention is meritless

because the Confrontation Clause does not apply at sentencing.

United States v. Powell, 650 F.3d 388, 393 (4th Cir.), cert.

denied, 132 S. Ct. 350 (2011).



                                            8
             Stanford also suggests that the district court erred

in considering and accepting such evidence because it was not

reliable.     A        sentencing         court        may    consider       “any     relevant

information        before          it,     including          uncorroborated           hearsay,

provided     that       the        information          has    sufficient         indicia     of

reliability       to    support      its    accuracy.”            Id.   at    392     (internal

quotation marks omitted).                 Although Stanford faults the district

court for erroneously accepting the testimony of the witness

regarding     the      reliability         of     statements       made      by     cooperating

individuals on the premise that the witness was not qualified as

an expert, this argument misses the mark.                          The Federal Rules of

Evidence     simply      do   not        apply    at    sentencing.          Fed.     R.    Evid.

1101(d)(3);       United      States        v.    Wilkinson,        590      F.3d    259,    269

(4th Cir. 2010).          Further, Stanford’s suggestion that statements

from the cooperating individuals were unreliable because those

individuals were “criminals” is unexplained and unsupported.

             Finally, insofar as Stanford may be inviting us to

overrule     Powell,          we     decline          his     invitation.           Powell     is

controlling circuit precedent, and “a panel of this court cannot

overrule, explicitly or implicitly, the precedent set by a prior

panel of this court.                 Only the Supreme Court or this court

sitting en banc can do that.”                    United States v. Rivers, 595 F.3d

558,   564   n.3       (4th   Cir.        2010)       (internal    quotation         marks   and

alteration omitted).

                                                  9
            Stanford   thus    fails     to   establish    that    the    district

court    committed     error—plain       or    otherwise—in       imposing     his

sentence.      Accordingly, in appeal No. 11-5010, we affirm the

district court’s judgment.

            We dispense with oral argument because the facts and

legal    contentions   are    adequately      presented    in     the    materials

before   the   court   and    argument      would   not   aid   the     decisional

process.



                                            No. 11-4768, DISMISSED IN PART,
                                                           AFFIRMED IN PART
                                                      No. 11-5010, AFFIRMED




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