                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-2887
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                DEXTRICK LAWTON,
                                                 Appellant
                             __________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 2-12-cr-00295-001)
                      District Judge: Honorable Gustave Diamond
                             __________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 8, 2015

           Before: VANASKIE, NYGAARD, and RENDELL, Circuit Judges

                            (Opinion Filed: January 11, 2016)
                                    _____________

                                       OPINION*
                                     _____________

VANASKIE, Circuit Judge.

       Appellant Dextrick Lawton entered a negotiated plea of guilty to conspiracy to

distribute and possess with intent to distribute one kilogram or more of heroin in violation

      * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
of 21 U.S.C. § 846, and signed a waiver of appellate rights in connection with his plea.

Before sentencing, he sought to withdraw his plea on the ground that it was not knowing,

intelligent, and voluntary. The District Court denied Lawton’s motion and imposed the

agreed-upon sentence of 180 months (15 years) of incarceration and 5 years of supervised

release. After Lawton appealed, the Government moved to enforce the appellate waiver.

For the reasons that follow, we will enforce the waiver and dismiss the appeal.

                                              I.

       In November 2012, Lawton and three codefendants were indicted by a federal

grand jury for conspiracy to distribute and possess with intent to distribute one kilogram

or more of heroin in violation of 21 U.S.C. § 846. The parties began plea negotiations

not long after indictment. The Government contended that Lawton would face an

enhanced offense level for being a supervisor or manager, but would receive a reduction

for acceptance of responsibility, resulting in an adjusted offense level of 32. Prior state-

court convictions for drugs and firearms led to a criminal history category of III. This

resulted in an advisory guidelines range of 151 to 188 months.

       During plea negotiations, the Government suggested that Lawton faced two

additional increases to any potential sentence. First, Lawton had a prior felony

conviction for possession of a controlled substance, which, upon filing of an information

by the Government, would have doubled Lawton’s mandatory minimum sentence from

10 to 20 years under 21 U.S.C. § 851. Second, the Government contended that on one

occasion, Lawton delivered heroin by way of an associate to a user named Brian Smith,

                                              2
who ultimately died from a combination of overdose and choking on food. The

combination of Lawton’s prior felony narcotics conviction and delivery of heroin that

resulted in death would have resulted in mandatory life imprisonment. See 21 U.S.C. §

841(b)(1)(A)(i). As part of a negotiated plea, the Government agreed to forego these

enhancements and recommend a sentence of 15 years’ imprisonment.

       On October 15, 2013, Lawton filed a pro se motion for the replacement of his

court-appointed counsel, Michael Moser. On October 22, the District Court conducted a

hearing and accepted Lawton’s representation that they were not “see[ing] eye to eye,”

App. 78. In response to Lawton’s motion, however, the Government said that it would

construe Moser’s dismissal as a rejection of the pending plea offer, which might lead to

the filing of an information under § 851 and a superseding indictment adding charges

relating to Smith’s death. Over Lawton’s objection, the Court agreed that the

Government retained the right to withdraw a plea offer at any time. Lawton then

conferred privately with counsel, after which he agreed to accept the plea offer and

withdraw his motion to dismiss Moser.

       Six weeks later, on December 4, Lawton, still represented by Moser, pleaded

guilty under Fed. R. Crim. P. 11(c)(1)(C) in exchange for the negotiated sentence of 15

years’ imprisonment. As part of the plea colloquy, both Lawton and Moser affirmatively

agreed that Lawton’s plea of guilty was knowing, intelligent, and voluntary. He also

agreed orally and in writing to a limited waiver of his appellate rights, which permitted

him to appeal only if (1) the Government appealed; (2) the sentence exceeded the

                                             3
applicable statutory limits; or (3) the sentence unreasonably exceeded the advisory

Guidelines range.

      This appeal turns largely on instances during the plea colloquy when Lawton

raised questions with respect to the substance of the Government’s evidence against him.

First, Lawton put the following inquiry to the Court:

             THE DEFENDANT: [A]s far as the evidence, is there, like,
             something else, like a package I was supposed to get?

             THE COURT: I’m sorry?

             THE DEFENDANT: Is there, like, a package I’m supposed to
             have with the evidence?

             THE COURT: No, there was no package you were supposed
             to have. There was certain evidence that the Government was
             required to produce for your lawyer at some earlier time. I
             presume that that’s been done under the Rule 12 rules. But
             the Government doesn’t have to produce all of its evidence in
             advance of trial.

             THE DEFENDANT: I understand that.

App. 98–99. Moments later, the following exchange occurred:

             THE COURT: You received a copy of the indictment in this
             case, and you have had an opportunity—

             THE DEFENDANT: No.

             THE COURT: You have not received a copy of the
             indictment in this case?

             THE DEFENDANT: No. I never had. The only thing I ever
             had between myself and my lawyer is pretty much explaining
             what a conspiracy is. I never had any paperwork or any—

             THE COURT: You have had an opportunity to discuss the
             charges that are against you with your lawyer?
                                            4
               THE DEFENDANT: Yes.

               THE COURT: So that you know that what you’re charged
               with in this case is from September 2010 to on or about
               January 2012, that you conspired with certain other
               individuals named and others both known and unknown to the
               Grand Jury to distribute and possess with the intent to
               distribute one kilogram or more of a mixture and substance
               containing a detectable amount of heroin. Do you understand
               that’s what you’re charged with in this case?

               THE DEFENDANT: Yes, sir.

App. 100–01.

       Shortly thereafter, the Government explained that, at trial, the proof would

demonstrate that Lawton served as a co-conspirator in a large-scale drug ring in which

“Lawton’s role was to distribute heroin to the hotel rooms, to collect money from the sold

heroin, and to otherwise assist the heroin distribution operations.” App. 111. The

Government added that it intended to present “evidence of a number of controlled

purchases of heroin during the course of the conspiracy, along with other seizures of

heroin[,] . . . laboratory analysis confirming that the substances seized and obtained were

in fact heroin[,] . . . [and] witness testimony confirming Lawton’s role in the

conspiracy.” Id. This led to the following exchange:

               THE COURT: You heard the Government’s summary of the
               evidence in the case as it pertains to you. Is that accurate?

               THE DEFENDANT: As far as my role, no. I was never
               presented with none of that. What she just said I never heard
               that before.




                                             5
              THE COURT: You don’t have to hear that before. This is the
              Government’s statement as to what they will be able to prove
              in the case as it pertains to you. Is that an accurate statement?

              THE DEFENDANT: Yes.

              THE COURT: Anything else in that regard?

              MR. MOSER: Nothing, Your Honor.

              THE COURT: Still your desire to plead guilty?

              THE DEFENDANT: Yes, sir.

App. 111–12. Neither Lawton nor Moser raised any further objection during the plea

colloquy that day.

       On December 13, 2014, still prior to sentencing, Moser moved to withdraw as

counsel because “[w]hen the change of plea happened . . . with respect to the factual

recitation, Mr. Lawton was in distress. There may be a question as to whether or not I

should have shut that down . . . .” App. 117. But because Moser could not assist in the

filing of a motion predicated in part on his own ineffectiveness, he was obliged to

withdraw. The Court granted the motion, after which Lawton, with the assistance of new

counsel, moved to withdraw his plea under Rule 11 of the Federal Rules of Criminal

Procedure.1 The Court denied the motion without a hearing.

       On May 21, 2014, at sentencing, Lawton reiterated his desire to withdraw his

guilty plea. He informed the Court that he had misunderstood the plea process, that he


       1
        Rule 11 provides that a defendant may withdraw a guilty plea before imposition
of sentence if “the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).

                                             6
never received discovery, that he had tried to ask the Court questions about the process

but was rebuffed, that he never oversaw the distribution of drugs or sold drugs, and that

Moser had misinformed him by telling him he could face life imprisonment in the

absence of a plea. The District Court declined to revisit its ruling on the motion to

withdraw, and sentenced Lawton to the agreed-upon term of 15 years’ imprisonment and

5 years of supervised release.

       After pronouncing the sentence, the Court heard from Lawton’s mother. In

response to her plea for leniency, the Court informed her as follows:

              Now, he has a certain right to appeal. If I was wrong in
              refusing to permit him to withdraw his plea, it will come
              back, but I’m not sure that it will come back to his benefit
              because unless the government loses all of the witnesses that
              it has, the chances are that he will still be convicted after a
              trial, but that’s pure speculation on my part. You understand
              he does have a limited right to appeal and he can appeal my
              ruling with regard to his motion to withdraw a sentence and
              plea.

App. 139. Lawton filed a timely appeal.

                                             II.

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We

have jurisdiction pursuant to 28 U.S.C. § 1291.

                                            III.

       The Government argues that we should enforce the waiver of appeal and dismiss

this matter for lack of jurisdiction. In assessing whether to enforce a waiver of appeal,

we must consider: (1) the scope of the waiver and whether it bars appellate review of the

                                             7
issue presented by the defendant; (2) whether the waiver was knowing, intelligent, and

voluntary; and (3) whether enforcing the waiver works a miscarriage of justice. United

States v. Jackson, 523 F.3d 234, 243–44 (3d Cir. 2008).

                                             A.

       Lawton first argues that this appeal falls outside the scope of the waiver because of

the District Court’s comments to Lawton’s mother after announcing sentence—namely,

its unsolicited remark that Lawton “does have a limited right to appeal and he can appeal

my ruling with regard to his motion to withdraw a sentence and plea.” App. 139. To be

sure, these remarks were at odds with the text of the earlier waiver, but they are not

controlling. The question is what the defendant understood at the time of the plea

colloquy. See United States v. Corso, 549 F.3d 921, 930 n.2 (3d Cir. 2008). Statements

by a district court at sentencing, even if contrary to an earlier waiver of appeal, do not

affect the waiver’s scope because “‘no justifiable reliance has been placed by the

defendant on such advice.’” Id. (quoting United States v. Liriano-Blanco, 510 F.3d 168,

173 (2d Cir. 2007)). Here, Lawton agreed to a waiver of appeal at the time of his plea,

and the District Court’s subsequent remarks to the contrary had no effect on the validity

or scope of that waiver. Because this appeal does not implicate any of the three

aforementioned exceptions contained in the waiver, we conclude that the appeal falls

within the waiver’s scope.

                                              B.



                                              8
       Next, Lawton submits that his waiver of appellate rights was not knowing,

intelligent, and voluntary. We analyze that claim by “scrutiniz[ing] the colloquy” to

determine whether “the district court ‘inform[ed] the defendant of, and determine[d] that

the defendant underst[ood] . . . the terms’” of the waiver. United States v. Mabry, 536

F.3d 231, 238-39 (3d Cir. 2008) (quoting Fed. R. Crim. P. 11(b)(1)(N)). We have

uniformly upheld the validity of appellate waivers where the district court engaged in an

appropriate plea colloquy under Rule 11. See id.; United States v. Gwinnett, 483 F.3d

200, 204–05 (3d Cir. 2007); United States v. Schweitzer, 454 F.3d 197, 203 (3d Cir.

2006); United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

       Here, Lawton affirmed that he was of sound mind at the time of the plea, that he

was satisfied with Moser’s performance as his attorney, and that he was pleading guilty

knowingly and voluntarily. It is true, as we detailed above, that he at times asked

questions and expressed dissatisfaction with the Government’s production of discovery

and its expected proof at trial. Nonetheless, after each such instance, he accepted the

District Court’s accurate explanation of his rights and reaffirmed his continuing desire to

plead guilty. This is unsurprising, given that Lawton’s objection to the recited facts

appears to have been limited to the specific allegation that he participated in the

distribution of heroin from hotel rooms. As he acknowledged by his plea of guilty, and

as he further clarified in his briefing, see Lawton’s Br. at 38, he did not object to the

Government’s contention that he committed the charged crime, that is, conspiracy to

distribute heroin. As to the appellate waiver in particular, the Court engaged in a lengthy

                                              9
inquiry during which Lawton expressed no confusion and asked no questions. As such,

the transcript on its face would not permit a finding that the plea as a whole, or the waiver

in particular, was unknowing or involuntary.

       In response, Lawton offers a written statement from Moser, which comes in the

form of a letter to Lawton’s current attorney written some four months after the change of

plea. Moser states that during the plea hearing, Lawton became distressed during the

Government’s factual recitation, such that Moser pulled Lawton aside and conducted a

lengthy off-the-record conversation with him. Moser now in hindsight surmises that

Lawton “may have been too upset and agitated to continue to proceed with a knowing,

intelligent, and voluntary change of his plea to guilty.” App. 47.

       Moser’s account is belied by the official transcript of the proceedings, which does

not reflect an interruption in the proceedings at the time Moser describes. Nor does the

record contain any other noteworthy expression of consternation or worry on Lawton’s

part. Instead the transcript reflects that the District Court “inform[ed] the defendant of,

and determine[d] that the defendant underst[ood] . . . the terms’” of the waiver. Mabry,

536 F.3d at 239 (quoting Fed. R. Crim. P. 11(b)(1)(N)). Under these circumstances, we

see no basis on which to decline enforcement of the waiver.2


       2
         Lawton also suggests that the plea was rendered involuntary based on unduly
coercive plea-bargaining tactics by the Government, including its position that the offer
would be withdrawn if Lawton pursued his motion for new counsel. Lawton offers no
legal support for this novel theory, and we agree with the District Court that in the
absence of a promise to hold the offer open for a fixed period, the Government was free
to withdraw its plea offer at any time.

                                             10
       As an alternative ground, Lawton argues that his plea was involuntary because

Moser was ineffective during plea negotiations. See United States v. Day, 969 F.2d 39,

43 (3d Cir. 1992) (“[A] defendant has the right to make a reasonably informed decision

whether to accept a plea offer.”). Here, Moser presented Lawton with a choice between a

negotiated 15-year sentence and the possibility of life imprisonment after trial. Lawton

now believes that the Government’s threat of an enhanced penalty under 21 U.S.C. § 851,

though legally justified by Lawton’s criminal history, was contrary to Department of

Justice policy. He also contends that under Burrage v. United States, 134 S. Ct. 881

(2014), the Government would not have been entitled to a sentencing enhancement under

§ 841(b)(1)(A)(i). He believes that Moser erred in failing to identify these issues and

bring them to his attention. Our longstanding practice, however, is “to defer the issue of

ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton, 327

F.3d 268, 271 (3d Cir. 2003). We will follow that policy here, where the applicability of

§ 841(b)(1)(A)(i), the extent of Moser’s advice on its applicability, and the question of

prejudice may turn on factual questions that are inappropriate for resolution at this

juncture.

                                             C.

       Finally, Lawton argues that enforcement of his appellate waiver would work a

miscarriage of justice by preventing review of his claim of actual innocence. Where a

defendant seeks to withdraw a plea under Rule 11 based on actual innocence, the

defendant’s burden is “substantial,” because “[b]ald assertions of innocence” are

                                             11
insufficient, and must be “‘buttressed by facts in the record that support a claimed

defense.’” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (quoting United

States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001)).

       Lawton, by his own admission, “has not asserted innocence of conspiracy to

deliver heroin altogether.” Lawton’s Br. at 38. And indeed, he would be hard-pressed to

support such a claim—the Government’s case was based on months of surveillance,

controlled buys, cooperating witnesses, and recorded calls. Instead, Lawton’s assertion

of innocence is limited to the claim that he did not participate in a scheme to distribute

heroin from hotel rooms, and had no role in Brian Smith’s death. Because Lawton’s

limited disagreement with the scope of his participation in the conspiracy falls well short

of a claim of actual innocence of the crime to which he pleaded guilty, Lawton has failed

to establish that enforcement of the waiver would work a miscarriage of justice.

                                             IV.

       For the foregoing reasons, we will enforce the waiver of appeal and dismiss the

appeal.




                                             12
