               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0072n.06

                                       No. 08-3135

                        UNITED STATES COURT OF APPEALS                             FILED
                             FOR THE SIXTH CIRCUIT                              Feb 04, 2011
                                                                          LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                    )
                                             )
       Plaintiff-Appellee,                   )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
TERRY SHEPHERD,                              )   NORTHERN DISTRICT OF OHIO
                                             )
       Defendant-Appellant.                  )




       Before: DAUGHTREY, CLAY, and WHITE, Circuit Judges.


       PER CURIAM. Defendant Terry Shepherd pleaded guilty to one count of using a

firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii), and one

count of possessing crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He now

appeals the 188-month sentence that the district court imposed, arguing that his plea was

not knowing and voluntary, that his sentence is unreasonable, and that recent

amendments to the drug-trafficking statutes should result in a decrease in his prison

sentence. Finding no reversible error, we affirm the district court’s sentencing order.


       The defendant was arrested and indicted for multiple offenses, including possession

with intent to distribute less than five grams of cocaine base and use of a firearm during

and in relation to a crime of violence. Shepherd eventually entered into an agreement with
No. 08-3135
United States v. Shepherd

the government, allowing him to plead guilty to the firearms offense and the drug offense

and stipulating that he qualified for sentencing as a career offender. Even after the

application of a three-level reduction for acceptance of responsibility, the defendant faced

sentencing pursuant to an advisory guideline range of 272-319 months.


       In the plea agreement, however, the government stated that it would recommend

to the district court an advisory guideline range of 188-235 months if Shepherd provided

information to the prosecution regarding other individuals involved in the criminal activity.

“The defendant further agree[d] that a total term of imprisonment of 188 months would

represent a reasonable sentence for the case, considering the sentencing factors outlined

in Title 18, Section 3553(a), United States Code.” Consequently, at sentencing, the

government moved, pursuant to section 5K1.1 of the United States Sentencing Guidelines,

that Shepherd’s advisory sentencing range be reduced further in light of the defendant’s

substantial assistance. The district judge granted the motion and imposed upon Shepherd

a prison term of 188 months, consisting of a 104-month sentence for the drug-trafficking

offense and a mandatory consecutive sentence of 84 months for the firearm conviction.

Shepherd now appeals from that judgment.


       Shepherd first contends that the district court should have set aside his guilty plea,

even without a request to do so, on the ground that “[he] was incompetent when he entered

into the plea agreement due to a lack of understanding of the proceedings.” Because the

defendant did not raise this issue in the district court in the first instance, we review such


                                            -2-
No. 08-3135
United States v. Shepherd

a challenge only for plain error. See, e.g., United States v. Thomas, 11 F.3d 620, 629 (6th

Cir. 1993). In Thomas, we set out the inquiries that must be undertaken in a plain-error

analysis:


       First, we are to consider whether an error occurred in the district court.
       Absent any error, our inquiry is at an end. However, if an error occurred, we
       then consider if the error was plain. If it is, then we proceed to inquire
       whether the plain error affects substantial rights. Finally, even if all three
       factors exist, . . . we must decide whether the plain error affecting substantial
       rights seriously affected the fairness, integrity or public reputation of judicial
       proceedings.


Id. at 630. See also United States v. Olano, 507 U.S. 725, 732 (1993).


       Well-established principles of due process hold that a court should not accept a

defendant’s guilty plea unless the defendant enters the plea “competently and intelligently.”

See Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S.

458, 468 (1938)). The standard of “competence” required to plead guilty is the same

standard used by courts to determine whether an individual is fit to stand trial, that is,

“whether the defendant has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and has a rational as well as factual

understanding of the proceedings against him.” Id. (quoting Dusky v. United States, 362

U.S. 402 (1960) (internal quotation marks omitted)). Of course, prior to accepting a guilty

plea, a district court must also “satisfy itself that the waiver of his constitutional rights is

knowing and voluntary.” Id. at 400 (citations omitted).



                                             -3-
No. 08-3135
United States v. Shepherd

       In this matter, the district judge did not err, much less plainly err, in determining that

the defendant was competent to plead guilty. The judge patiently and thoroughly

questioned Shepherd about his alertness on the day of the plea hearing, any questions he

might have had about the charges against him, the possible punishments to be imposed,

the constitutional rights that would be waived by a plea of guilty, the contents of the plea

agreement, and his educational and health backgrounds.                 Specifically, the court

ascertained that Shepherd dropped out of school in the ninth grade but was pursuing his

GED, that Shepherd was not taking any medication, that he had not received treatment for

his learning disability since he was young, that he read the plea agreement himself, and

that he conferred with his attorney about every provision of the agreement. The district

judge also went through the plea agreement with Shepherd, provision by provision,

satisfying herself through questioning that the defendant understood the contents of the

document.


       During the sentencing hearing, Shepherd did claim that he had some difficulty

reading. Nevertheless, he conceded that he had reviewed his presentence report carefully

with his attorney. Shepherd’s counsel made mention that he had met with the defendant

nine times in order to prepare him for the sentencing hearing, but never implied that

Shepherd was incompetent to enter the guilty plea. He did, however, urge the court to take

his client’s learning disability into account when determining the proper sentence to be

imposed. The district judge noted that Shepherd received Social Security benefits as a



                                              -4-
No. 08-3135
United States v. Shepherd

teenager, but she also found that the defendant’s “mental and emotional health seems to

be good.”


       Shepherd clearly displayed “sufficient present ability to consult with his lawyer.”

Throughout the guilty-plea hearing and the sentencing hearing, in fact, the defendant took

the opportunity to confer with counsel, both when prompted to do so by the district judge

and on his own initiative. Furthermore, the appellate record presents no indication

whatsoever that Shepherd did not understand the proceedings or that his plea was

anything other than knowing and voluntary. Neither Shepherd nor his attorney stated that

he was not ultimately made aware of the ramifications of all plea provisions or that he did

not understand the rights he was waiving.


       In the absence of any evidence or indication that Shepherd was unable to consult

with his attorney or understand the advice offered to him, no error, plain or otherwise, was

committed by the district judge in failing to declare on her own initiative that the defendant

was incompetent to enter his guilty pleas in this case. This challenge to the defendant’s

convictions is without merit.


       Shepherd also alleges error in the district court’s imposition of the 188-month

sentence. In the plea agreement, however, Shepherd expressly and voluntarily waived his

right to appeal his sentence, either directly or collaterally. The only allowable exceptions

to the waiver were claims that punishment was imposed in excess of the applicable

statutory maximum or in excess of 188 months, claims of ineffective assistance of counsel,

                                            -5-
No. 08-3135
United States v. Shepherd

and claims of governmental misconduct. Because Shepherd does not raise an appellate

issue falling within the parameters of the listed exceptions, and because the record

indicates that the defendant knowingly and voluntarily entered into the plea agreement,

Shepherd has waived these sentencing issues, and we may not now address them on

appeal.


      Finally, in a supplemental appellate brief, the defendant also argues that he is

entitled to re-sentencing under this court’s holding in United States v. Almany, 598 F.3d

238 (6th Cir. 2010), and to a retroactive reduction in his sentence as a result of the

enactment of section 2(a) of the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat.

2372 (Aug. 3, 2010).     But, because the two supplemental issues raise additional

challenges to a sentence that was contemplated by the plea agreement, Shepherd’s waiver

of his appellate rights in that agreement would also serve to insulate these issues from

appellate review.


      Even if this court were to address the supplemental claims, however, Shepherd

would not be entitled to the relief he seeks. First, the United States Supreme Court

granted certiorari in Almany, see 131 S. Ct. 637 (2010), and vacated our prior opinion in

that case. Upon remand, in light of the Supreme Court’s ruling in Abbott v. United States,

131 S. Ct. 18 (2010), we restored Almany’s five-year, consecutive firearm sentence

because no other statutory provision called for a greater minimum sentence for the conduct

proscribed in 18 U.S.C. § 924(c). See United States v. Almany, 626 F.3d 901 (6th Cir.


                                          -6-
No. 08-3135
United States v. Shepherd

2010). Similarly, Shepherd was not convicted in this case of another firearms violation that

imposed a greater mandatory-minimum sentence. He is thus not entitled to the leniency

he seeks.


       Likewise, the provisions of the Fair Sentencing Act of 2010 offer Shepherd no relief.

Pursuant to section 2(a) of the legislation, 21 U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B) were

amended to increase the amount of crack cocaine necessary to trigger the statute’s

enhanced-sentencing provisions. Specifically, the Act increased from 50 grams to 280

grams the amount of crack cocaine required to justify a ten-year mandatory- minimum

sentence, and from five grams to 28 grams the amount of crack cocaine required to justify

a five-year mandatory-minimum sentence. Because the defendant pleaded guilty to

possession of only 2.96 grams of crack cocaine, the statutory provision under which he

was sentenced was not affected by the 2010 amendments. Instead, any increase in

Shepherd’s sentence beyond the applicable guideline range was occasioned by his career-

offender status.


       For the reasons set out above, we AFFIRM the judgment of the district court.




                                           -7-
