                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0406n.06

                                Nos. 13-2297, 13-2385 & 13-2405

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Jun 04, 2015
UNITED STATES OF AMERICA,                                )
                                                         )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
DARREN TERRY,            DERRICK       TERRY,        and )      COURT FOR THE EASTERN
DANTA JOHNSON,                                           )      DISTRICT OF MICHIGAN
                                                         )
       Defendants-Appellants.                            )


       Before: COLE, Chief Judge; GILMAN, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Darren Terry, Derrick Terry, and Danta Johnson each pled

guilty to conspiracy to distribute marijuana. On appeal, Johnson and Derrick Terry argue that

the district court failed to comply with Rule 11 during their plea hearings. Darren Terry argues

that his lawyer was constitutionally ineffective. We affirm.

                                                I.

       In December 2011, a grand jury charged the three defendants with, among other things,

conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. All three

agreed to plead guilty to the conspiracy charge. Their plea agreements each contained an

appellate-waiver provision.

       The district court held a separate plea hearing for each defendant. During these hearings,

each stated that he had read and signed the plea agreement, that he had read the waiver provision,

and that he had no questions about the agreement or the waiver. All three then pled guilty. The
Nos. 13-2297, 13-2385 & 13-2405
United States of America v. Derrick Terry, Darren Terry, and Danta Johnson

court later sentenced them within the ranges specified in their respective plea agreements. These

appeals followed.

                                                II.

                                               A.

       Derrick Terry argues that his guilty plea was not knowing and voluntary because the

district court failed to comply with Federal Rule of Criminal Procedure 11. He failed to object

on that basis below, however, so we review for plain error. United States v. Webb, 403 F.3d 373,

378 (6th Cir. 2005). To comply with Rule 11, the district court must among other things

“determine that the defendant understands” the “terms of any plea-agreement provision waiving

the right to appeal or to collaterally attack the sentence.” Fed R. Crim. P. 11(b)(1)(N). During

Derrick’s plea hearing, the district court asked Derrick to read the entire appellate-waiver

provision silently to himself while the district court read it aloud in open court.       Derrick

confirmed that he heard what the district court had read. The court also asked Derrick if he had

any questions about the provision; Derrick said he had none. The district court thus had reason

to think that Derrick understood the terms of the waiver provision.

       Derrick responds that the district court never asked specifically whether he

“understood” the agreement. But this court has routinely confirmed that, in a plea colloquy,

“[m]atters of reality, not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d

16, 17 (6th Cir. 1968). In fact, the court has addressed precisely the question presented here and

concluded that “the district court’s failure to inquire specifically as to whether [the defendant]

understood the appellate-waiver provision was not erroneous.” United States v. Sharp, 442 F.3d

946, 951 (6th Cir. 2006). Here, the district court properly “determined”—the sense that Rule 11




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Nos. 13-2297, 13-2385 & 13-2405
United States of America v. Derrick Terry, Darren Terry, and Danta Johnson

uses the word—that Derrick understood the appellate-waiver provision when the provision was

read to him in its entirety and he acknowledged that he had no questions about it.

       Derrick also argues that the terms of his waiver “do not bar the appeal of his sentence.”

Br. at 18. But Derrick has not challenged his sentence, so we need not address that argument.

                                                B.

       Johnson argues that the district court failed to comply with Rule 11 in two ways. He

failed to object to those alleged failures below, so again we review for plain error. Webb, 403

F.3d at 378. Johnson first contends that the district court failed to “determine that there was a

factual basis for [his] plea.” Fed. R. Crim. P. 11(b)(3).       A person conspires to distribute

marijuana if he “knew of, intended to join, and participated in” a plan to distribute that drug.

United States v. Elder, 90 F.3d 1110, 1120 (6th Cir. 1996). Here, Johnson admitted during his

plea hearing that he had knowingly and voluntarily “agree[d] with other individuals that [he]

would distribute marijuana for them.” And he admitted in his plea agreement that he had

“assisted in the delivery of drugs obtained by other members of the conspiracy.” Thus, the

district court properly determined that there was a sufficient factual basis for Johnson’s plea of

guilty to conspiracy to distribute marijuana.

       Johnson also contends that the court failed to determine whether he understood “the

nature of [the] charge to which [he was] pleading.” Fed. R. Crim. P. 11(b)(1)(G). If the

government charges the defendant with an “easily understood” crime, then the district court may

discharge this obligation by reading “a summary of the charges [contained] in the indictment.”

United States v. Valdez, 362 F.3d 903, 910 (6th Cir. 2004). For these purposes, conspiracy to

distribute marijuana is an “easily understood” crime. Id. Here, the district court told Johnson

during his plea hearing that the indictment charged him with conspiracy to distribute marijuana,


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Nos. 13-2297, 13-2385 & 13-2405
United States of America v. Derrick Terry, Darren Terry, and Danta Johnson

and Johnson said he had no questions about the charge. Johnson also confirmed during the

hearing that he had read the entire plea agreement—which spelled out the elements of that

charge in greater detail—and discussed the agreement with his attorney. Thus, the district court

properly determined that Johnson understood the nature of the charge to which he was pleading.

                                                C.

       Darren Terry argues that his defense counsel provided constitutionally ineffective

assistance because counsel had previously represented a codefendant. But we typically address

ineffective-assistance claims on direct review only if counsel’s ineffectiveness is “apparent from

the record.” Valdez, 362 F.3d at 913-14. Here it is not: Darren merely alleges that his attorney

might have represented him ineffectively, and provides no concrete examples as to how. We

therefore do not address the merits of Darren’s ineffective-assistance claim.

       Darren also asks us to remand his case to the district court for an evidentiary hearing, as

we did in United States v. Osborne, 402 F.3d 626 (6th Cir. 2005). There, defense counsel jointly

represented two codefendants during the same proceeding. Under those circumstances, Rule 44

provides that the district court shall “promptly inquire” into whether counsel can effectively

represent both defendants. Fed. R. Crim. P. 44(c)(2). The district court in Osborne had failed to

make that inquiry, so we remanded the case for the court to conduct a Rule 44 hearing “after the

fact.” 402 F.3d at 634. There is no need to do that here: Darren’s lawyer was no longer

representing a codefendant when he began representing Darren, which means the district court

did not need to conduct a Rule 44 hearing in the first place. See Mickens v. Taylor, 535 U.S.

162, 175 (2002).

       The district court’s decision is affirmed.




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