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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13315
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-00214-WS-B-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANTHONY GREENE,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (April 3, 2019)

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM:
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       Anthony Greene filed a notice of appeal from his guilty-plea conviction and

sentence for possession of a firearm by a convicted felon. On appeal, however,

Greene does not challenge his conviction or sentence, but argues instead that the

district court should have granted his motion to withdraw from the plea agreement

while maintaining his guilty plea. In particular, Greene seeks to avoid enforcement

of the appeal waiver in the plea agreement. 1

       The government has moved to dismiss the appeal based on the appeal

waiver. We deny the motion to dismiss but affirm the district court’s denial of

Greene’s motion to withdraw from the plea agreement, as well as Greene’s

conviction and sentence.

                                                I.

       Greene entered a guilty plea to a single count of possession of a firearm by a

convicted felon, 18 U.S.C. § 922(g)(1), pursuant to a written plea agreement. In

the plea agreement, Greene acknowledged the charge against him, the truth of the

factual basis for the charge, the application of the Sentencing Guidelines, the

district court’s discretion in sentencing, and the maximum penalties that could be

imposed; he agreed to waive his constitutional trial rights and plead guilty to the

single count of the indictment; and he stated that his plea was freely and


1
  Greene does not challenge his guilty plea, conviction, or sentence; nor does he identify any
issues that he would raise on direct appeal if he were released from the plea agreement appeal
waiver. Presumably, he seeks to preserve the option to file a collateral attack.
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voluntarily entered. He also agreed to waive his statutory rights to file any direct

appeal or collateral attack, with limited exceptions. In exchange, the government

promised not to bring additional related charges and to recommend a sentence at

the bottom of the Guidelines range.

      The plea agreement also contained statements that Greene had read the

agreement and “carefully reviewed every part of it” with his attorney, that he was

not under the influence of drugs or alcohol and was “certain that he [was] in full

possession of his senses and [was] mentally competent to understand this Plea

Agreement and the guilty plea hearing which will follow,” and that he understood

the agreement and voluntarily agreed to it. On the last page of the agreement,

Greene’s counsel signed a statement that he had “fully explained” Greene’s rights

to him and “carefully reviewed every part of this Plea Agreement” with Greene.

Counsel further stated that, to his knowledge, Greene’s decision to stipulate to the

attached factual basis and enter into the plea agreement was an informed and

voluntary one.

      The district court held a Rule 11 change-of-plea hearing and accepted

Greene’s guilty plea. During the hearing, the district court discussed the written

plea agreement, specifically including the appeal waiver, with Greene. Greene

confirmed that he had read and signed the plea agreement, that he had reviewed it

with his attorney, that he “fully underst[oo]d the terms and conditions of the plea


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agreement and the factual resume,” and that he agreed with those terms and

conditions. During the hearing, Greene occasionally paused and asked the court a

question or consulted with his attorney before responding to the district court’s

questions. Before accepting Greene’s plea, the district court found that Greene

was “fully competent and capable of entering an informed plea.”

      After the court accepted Greene’s guilty plea but before sentencing, Greene

was evaluated by two different psychologists, one retained by defense counsel and

one employed by the government. The two psychologists identified similar

issues—both determined that Greene was borderline intellectually disabled with

significant impairments in reading comprehension, milder deficits in verbal

comprehension and reasoning, and severe attention deficit/hyperactivity disorder—

but reached opposite conclusions. The defense psychologist concluded that Greene

was not competent to stand trial; the government psychologist concluded that he

was competent. The government psychologist also specifically found that Greene

had a basic understanding of plea bargains and was able to tell a good bargain from

a bad one in the context of penalties for the crime charged.

      Greene subsequently filed a motion to withdraw from the written plea

agreement. At a hearing on the motion, Greene’s counsel explained that the

defense psychologist had changed his mind and now agreed that Greene was

mentally competent to understand the Rule 11 plea colloquy, plead guilty, and be


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sentenced, but that the psychologist also believed that Greene could not understand

the vocabulary used in the written plea agreement because of his intellectual

deficits, particularly his impaired reading comprehension. Defense counsel argued

that, because Greene was not able to read and understand the document

memorializing the plea agreement, his decision to enter into the agreement was not

an informed one. He asked that Greene be permitted to withdraw from the plea

agreement but maintain his guilty plea or, in the alternative, withdraw his plea and

enter a new “blind” guilty plea without a plea agreement.

      Defense counsel again confirmed that he had read the plea agreement to

Greene and gone over it with him before Greene signed it, and that Greene had

indicated at the time that he understood the plea agreement. In fact, Greene

himself consistently maintained that he did understand the plea agreement; counsel

filed the motion to withdraw from it against his wishes.

      The district court denied Greene’s motion to withdraw from the plea

agreement. Based on the psychologists’ reports, Greene’s stipulation that he was

competent to plead guilty and be sentenced, his personal insistence that he did

understand the plea agreement, and his demeanor and answers to the court’s

questions during the change-of-plea hearing, the court found that Greene was

competent to understand the important aspects of the plea agreement and did in

fact understand them.


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      Despite the attempted repudiation of the plea agreement, the government

upheld its end of the bargain by recommending a sentence at the low end of

Greene’s Guidelines range of 30–37 months. The district court sentenced Greene

to 30 months in prison followed by three years of supervised release.

                                         II.

      “We review the validity of appeal waivers de novo.” United States v.

Hardman, 778 F.3d 896, 899 (11th Cir. 2014). A district court’s decision

regarding competency is a factual finding reviewed only for clear error, whether

the issue is competency to stand trial, plead guilty, or waive postconviction review.

United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993). Similarly, we

review a district court’s finding that the defendant’s guilty plea was knowing and

voluntary only for clear error. United States v. Presendieu, 880 F.3d 1228, 1240

(11th Cir. 2018). “A finding of fact is clearly erroneous only when we are left with

a definite and firm conviction that a mistake has been committed.” Hogan, 986

F.2d at 1372 (citation and punctuation omitted). And a district court’s ruling on a

defendant’s motion to withdraw his guilty plea is reviewed for an abuse of

discretion. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006).




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                                         III.

                                         A.

      We begin with the government’s motion to dismiss the appeal based on the

appeal waiver in the plea agreement. The government argues that the terms of the

waiver are broad enough to cover any appeal, even if Greene does not challenge

his guilty plea, conviction, or sentence. But as we have held before, a plea-

agreement appeal waiver does not bar a challenge to the validity of the agreement

itself. “‘Waivers of appeal must stand or fall with the agreements of which they

are a part. If the agreement is voluntary, and taken in compliance with Rule 11,

then the waiver of appeal must be honored. If the agreement is involuntary, or

otherwise unenforceable, then the defendant is entitled to appeal.’” United States v.

Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015) (quoting United States v.

Wenger, 58 F.3d 280, 282 (7th Cir. 1995)); see also United States v. Carreon-

Ibarra, 673 F.3d 358, 362 n.3 (5th Cir. 2012) (an appeal waiver cannot “bar a

claim that the waiver itself—or the plea agreement of which it was a part—was

unknowing or involuntary”).

      The sole issue raised on appeal is whether Greene was competent to enter

the plea agreement. Greene argues, essentially, that he did not knowingly and

voluntarily accept the terms of the plea agreement because he could not understand

them. This claim is not barred by the appeal waiver because Greene’s “appeal


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waiver itself would be invalid if he lacked the mental capacity to understand and

appreciate the nature and consequences of the plea agreement.” United States v.

Wingo, 789 F.3d 1226, 1234 n.8 (11th Cir. 2015). Accordingly, we deny the

government’s motion to dismiss.

                                         B.

       Greene’s arguments on appeal present two related issues: first, whether

Greene was mentally competent to enter into the plea agreement—in other words,

whether he was capable of understanding the terms of the agreement—and second,

whether he actually understood the plea bargain, so that his waiver of rights was

knowing and voluntary. See Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993).

We address each in turn.

                                          1.

      The basis for Greene’s motion to withdraw from the plea agreement was his

apparent inability to read and understand the language used in the written

agreement. But the standard for mental competence does not require that a

defendant have a clear understanding of legal terminology, or that he be able to

read and understand a legal document without assistance. Cf. Hogan, 986 F.2d at

1373 (“Even perfectly competent defendants often do not fully comprehend the

intricacies of some of the defensive theories offered by their lawyers. That level of

comprehension is not a requirement of competency.”). In the absence of evidence


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that the defendant was incapable of understanding the proceedings sufficiently to

assist counsel, “low intelligence, mental deficiency,” or signs of mental illness are

insufficient to show incompetence. Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d

1093, 1101 (11th Cir. 2009).

      The question, then, was not whether Greene could read and understand the

written plea agreement on his own, or whether he could define the vocabulary used

in the agreement to the satisfaction of the defense psychologist, but whether he was

capable of understanding the nature and consequences of the bargain he was

making. A defendant bears the burden of showing his mental incompetence by a

preponderance of the evidence. United States v. Bradley, 644 F.3d 1213, 1268

(11th Cir. 2011).

      Greene stipulated—and both psychologists agreed—that he was competent

to plead guilty and be sentenced. Based on those representations and the court’s

own observations of Greene during the change-of-plea hearing, the district court

found that Greene was mentally competent to enter his guilty plea, and Greene

does not contest that finding on appeal. Thus, we start with the understanding that

Greene had “‘sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding’” and “‘a rational as well as factual understanding

of the proceedings against him.’” Godinez, 509 U.S. at 396 (quoting Dusky v.

United States, 362 U.S. 402, 402 (1960) (per curiam)) (discussing standard for


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competence to stand trial or plead guilty); United States v. Rodriguez, 751 F.3d

1244, 1252 (11th Cir. 2014); see also Eggers v. Alabama, 876 F.3d 1086, 1094

(11th Cir. 2017) (applying test for competence to waive further postconviction

review involves determining whether the defendant “suffers from a mental disease,

disorder, or defect” that prevents him from “understanding his legal position and

the options available to him” or “making a rational choice among his options.”

(citation and punctuation omitted)). Indeed, according to defense counsel’s

representations at the competency hearing, the defense psychologist used a copy of

Rule 11 as a checklist and confirmed that Greene was able to understand all of the

concepts in Rule 11’s “list of things that the court is required to cover and did

cover with [Greene] at his plea colloquy.” Those same concepts account for the

bulk of the plea-agreement terms, including provisions describing the nature of the

crime charged, the factual basis for the charge, the penalties that might be imposed

at sentencing, and the terms of the appeal waiver; Greene’s acknowledgement and

waiver of his constitutional trial rights; and his representations that the plea was

knowingly and voluntarily entered. See Fed. R. Crim. P. 11(b)(1)(A)–(N); (b)(2)–

(3).

       Greene has not identified any specific provision of the plea agreement that

he was incapable of understanding once it was read and explained to him by

counsel. The only “evidence” supporting Greene’s claim of incompetence was


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defense counsel’s representation that one of the evaluating psychologists was

concerned that Greene could not read and understand the written plea agreement.

But that same psychologist also verified that Greene could understand all of the

concepts from the plea agreement when they were discussed with him during the

Rule 11 colloquy, and defense counsel confirmed that he had also read the plea

agreement to Greene and “carefully reviewed every part of” it with him.

      Moreover, the defense psychologist’s opinion was countered by the opinion

of the government psychologist, who had the benefit of a much longer testing

period and the observations of Federal Medical Center staff; Greene’s statements

in the plea agreement and under oath during the Rule 11 colloquy that he did

understand the plea agreement, including the appeal waiver; and the district court’s

observations of Greene’s demeanor and answers to the court’s questions during the

change-of-plea hearing. Under the circumstances, we cannot say that the district

court clearly erred in finding that Greene was competent to enter the plea

agreement. See Izquierdo, 448 F.3d at 1278 (“‘Where there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.’” (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985))).




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                                         2.

      The record also supports the district court’s finding that Greene actually did

understand the terms of the plea agreement, so that his decision to enter into the

agreement was knowing and voluntary. See Godinez, 509 U.S. at 400–01 & n.12.

Defense counsel confirmed that Greene had seemed to understand the plea

agreement when it was read and explained to him, and he certified that he believed

that Greene’s decision to enter into the agreement was “an informed and voluntary

one.” Greene himself consistently maintained—when reviewing the agreement

with his attorney, at the plea colloquy, and even at the motion hearing—that he

understood the plea agreement. See Winthrop-Redin v. United States, 767 F.3d

1210, 1217 (11th Cir. 2014) (statements made by the defendant under oath at the

plea colloquy are presumed to be true). The district court’s assessment of Greene’s

demeanor and answers to the court’s “very straightforward questions” during the

plea colloquy—including questions specifically addressing Greene’s understanding

of the appeal waiver and other key parts of the plea agreement—also weighed in

favor of finding that he understood the agreement. See United States v. Bushert,

997 F.2d 1343, 1351 (11th Cir. 1993) (government may establish that an appeal

waiver was knowing and voluntary, and is therefore enforceable, by showing that

the district court specifically discussed the appeal waiver with the defendant during

the Rule 11 colloquy). On these facts, the district court’s finding that Greene


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understood the plea agreement was not clearly erroneous, and its denial of

Greene’s motion to withdraw from the plea agreement was not an abuse of

discretion. Greene’s convictions and sentences, and the district court’s denial of

his motion to withdraw from the plea agreement, are therefore AFFIRMED.




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