           Case: 16-10570   Date Filed: 03/08/2017   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10570
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:14-cr-00431-MHT-WC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANDREW XAVIER SALERY,

                                                          Defendant-Appellant.

                       ________________________

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

                              (March 8, 2017)

Before MARCUS, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Andrew Salery appeals his convictions and 90-month sentence for two

counts of possession of a firearm by a convicted felon in violation of 18 U.S.C.

§ 922(g)(1) and one count of possession of marijuana with intent to distribute in

violation of 21 U.S.C. § 941(b)(1)(D). Salery first argues the district court erred

when it determined he was competent to plead guilty. He next argues he did not

knowingly or voluntarily waive his right to appeal. And if his appeal waiver is not

valid, then he argues the district court erred in imposing a two-level enhancement

pursuant to U.S.S.G. § 2K2.1(b)(4) for possessing a stolen firearm. After careful

review, we conclude Salery’s appeal waiver is not enforceable but affirm his

convictions and sentence.

                                          I.

      On December 16, 2014, Salery was charged by superseding indictment with

five counts. After he was charged, his counsel filed a motion for competency

determination. Dr. Robert Shaffer, a clinical psychologist, evaluated Salery in

January 2015. Dr. Shaffer concluded Salery “exhibited symptoms consistent with .

. . Schizoaffective Disorder, Major Neurocognitive Disorder, and Posttraumatic

Stress Disorder” as well as possibly “Borderline Personality Disorder and

Attention Deficit Hyperactivity Disorder.” Dr. Shaffer also conducted

neurological testing that showed impairment of Salery’s frontal lobes. As a result




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of Dr. Shaffer’s findings, the district court ordered the Bureau of Prisons to

evaluate Salery’s competency to stand trial.

      Dr. Tennille Warren-Phillips, a licensed psychologist, evaluated Salery’s

competence for the Bureau of Prisons over a two-month period. She administered

several tests to Salery, one of which showed his IQ was 58. However, she

suspected Salery intentionally misrepresented himself as impaired because of

validity indicators in the testing and because Salery’s results did not align with his

reported academic performance. Dr. Warren-Phillips diagnosed Salery with severe

Oppositional Defiant Disorder, Antisocial Personality Disorder, Borderline

Personality Disorder, and severe Cannabis Use Disorder. She concluded Salery

was competent to stand trial because he “exhibited good verbal skills, memory, and

related abilities necessary to consult effectively with counsel.” In her opinion,

Salery did not appear to suffer from any mental issue that would make him unable

“to understand the nature and consequences of the proceedings against him or to

properly assist in his defense.”

      The district court then held a hearing to determine Salery’s competence.

Both Dr. Shaffer and Dr. Warren-Phillips testified and were cross-examined.

Based on the two doctors’ reports and the evidence presented at the hearing, the

district court found “Salery is competent and has the mental capacity to stand

trial.” The court recognized Dr. Shaffer’s conclusions, but credited Dr. Warren-


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Phillips’s testimony over his because she evaluated Salery for a longer period of

time and with more comprehensive testing. However, the district court later issued

an order telling the parties to jointly craft a plan for Salery to receive “immediate

and regular” mental-health treatment. The court said although Salery was

competent to proceed, it recognized the serious mental-health issues he suffered.

      In October 2015, Salery agreed to plead guilty to two counts of possession

of a firearm by a convicted felon and one count of possession of marijuana with

intent to distribute. In exchange, the government dropped two other charges

against him and agreed Salery would receive a sentence of no more than 10-years

imprisonment. The plea agreement also contained an appeal and collateral attack

waiver.

      The district court held a plea colloquy at which Salery pleaded guilty. The

district court questioned Salery about whether he understood the effects of his plea

deal including that he had the right to appeal his sentence “under some

circumstances.” Salery said he did. The court then asked if he understood he was

waiving his right to appeal any sentence imposed. Salery again said yes, but the

court noted his hesitancy. Salery replied he was comprehending everything as best

he could and that the court could “go ahead.” The court found him competent to

enter a plea and accepted the plea agreement. Salery was sentenced to 90-months

imprisonment.


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                                         II.

      “We review a district court’s determination of competency to stand trial as a

factfinding subject to reversal only for clear error.” United States v. Saingerard,

621 F.3d 1341, 1343 (11th Cir. 2010) (per curiam) (quotation omitted). The

district court’s competency finding “is clearly erroneous only when we are left

with a definite and firm conviction that a mistake has been committed.” United

States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (per curiam) (quotation

omitted).

      We review de novo the validity of a sentence appeal waiver. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We review for clear error the

district court’s factual findings on sentencing matters, including guidelines

enhancements. United States v. Bradley, 644 F.3d 1213, 1283 (11th Cir. 2011).

                                         A.

      Salery first argues the district court clearly erred when it found he was

competent to plead guilty. He points to Dr. Shaffer’s evaluation and testimony, as

well as the district court’s acknowledgement of his mental-illness history and order

that he receive treatment. “The standard for competency to stand trial is whether

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

reasonable degree of rational understanding—and whether he has a rational as well




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as factual understanding of the proceedings against him.” Bradley, 644 F.3d at

1268 (quotation omitted).

      Dr. Shaffer and Dr. Warren-Phillips conducted evaluations of Salery but

reached different conclusions on his competency to stand trial. The district court

held a full competency hearing where both experts testified and were subject to

cross examination. Under this Court’s precedent, “[w]here there are two

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

clearly erroneous.” Izquierdo, 448 F.3d at 1278 (quotation omitted). And when

the district court is “[f]aced with diametrically opposite expert testimony, [it] does

not clearly err simply by crediting one opinion over another where other record

evidence exists to support the conclusion.” Bradley, 644 F.3d at 1268 (quotation

omitted). The district court here was faced with conflicting opinions and

evaluations from two experts, and chose to credit Dr. Warren-Phillips over Dr.

Shaffer because she evaluated Salery for a longer period of time and with more

comprehensive testing. See id. And although the district court acknowledged

Salery’s mental-health issues, it specifically found he was still competent to

proceed despite them. Thus, the district court did not clearly err in finding Salery

competent.




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                                         B.

      Next, Salery argues his appeal and collateral attack waiver is invalid because

he did not knowingly or voluntarily waive his rights. An appeal waiver is valid if

it was knowingly and voluntarily made. United States v. Bushert, 997 F.2d 1343,

1350 (11th Cir. 1993). For it to be knowing and voluntary, the government must

show: “(1) the district court specifically questioned the defendant” about the

waiver; or “(2) it is manifestly clear from the record that the defendant otherwise

understood the full significance of the waiver.” Id. at 1351. The text of the plea

agreement alone is not sufficient to find the defendant made an appeal waiver

knowing and voluntarily. Id. at 1352.

      Although Salery was competent to stand trial and waive his rights, his appeal

and collateral attack waiver is not enforceable on this record. The district court

first asked Salery if he understood he could appeal his sentence “under some

circumstances.” In Bushert, this Court held this exact language was not

sufficiently clear for a valid waiver. Id. at 1352–53. The Bushert panel said such

language was “confusing” because although it was “true that even under the terms

of the sentence appeal waiver, [the defendant] could appeal his sentence under

some circumstances,” the court’s statement “did not clearly convey to [the

defendant] that he was giving up his right to appeal under most circumstances.”

Id. The court then asked Salery if he understood he was waiving his right to appeal


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any sentence imposed. Salery said yes, but the record shows the court thought

Salery “seem[ed] to be hesitant about this.” Salery replied he was comprehending

everything to the best of his ability. This Court has held the district court’s

questioning at the plea colloquy must “establish[] that the defendant understood the

nature and extent of the appeal waiver and agreed to it” in order to satisfy the

requirements in Bushert. United States v. Buchanan, 131 F.3d 1005, 1008 (11th

Cir. 1997) (per curiam). Because the district court did not explain with specificity

the nature and extent of the appeal waiver; was contradictory in its questioning

about the scope of Salery’s appeal rights; noted Salery’s hesitancy; and because

Salery has a recognized history of mental-health issues, we cannot say on this

record it is “manifestly clear” that Salery understood the full significance of his

waiver. See Bushert, 997 F.2d at 1353. As a result, Salery’s appeal and collateral

attack waiver is not enforceable and it is severed from his plea deal. Id. at 1353–

54.

                                          C.

      Because his appeal waiver is not valid, Salery may appeal his sentence.

Salery argues the district court erred when it applied a two-level enhancement to

his guidelines range under § 2K2.1(b)(4)(A) after finding the offense involved a

stolen firearm. He says the district court’s factual finding was clearly erroneous

because it was based on the testimony of the case agent, which was impermissible


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hearsay. Salery also argues this hearsay was unreliable because it was based on a

stolen firearm report about a 9 mm Glock, but he was found with a .40 caliber

Glock.

      The district court may consider any information (including hearsay),

“regardless of its admissibility at trial, in determining whether factors exist that

would enhance a defendant’s sentence, provided that the evidence has sufficient

indicia of reliability, the court makes explicit findings of fact as to credibility, and

the defendant has an opportunity to rebut the evidence.” United States v. Ghertler,

605 F.3d 1256, 1269 (11th Cir. 2010) (quotation omitted); see also USSG

§ 6A1.3(a). Hearsay evidence at sentencing is sufficiently reliable when it is

consistent with or corroborated by other evidence. See United States v. Gordon,

231 F.3d 750, 760–61 (11th Cir. 2000); United States v. Wilson, 183 F.3d 1291,

1301 (11th Cir. 1999).

      The district court properly applied the two-level enhancement for possessing

a stolen firearm. The court did not clearly err by relying on the case agent’s

testimony, regardless of whether it was hearsay, because it was sufficiently

reliable. See Ghertler, 605 F.3d at 1269. Salery is correct that the incident report

about the stolen firearm misreported the stolen weapon as a 9 mm Glock. But at

sentencing, the case agent testified that she traced the .40 caliber Glock found in

Salery’s possession to its original owner. That owner told her his .40 caliber Glock


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had been stolen from his wife’s car. He explained his wife filled out the police

report and mistakenly detailed the stolen firearm as a 9 mm Glock. The original

owner also provided a bill of sale for the .40 caliber Glock he said was stolen. The

serial number on the bill of sale matched the firearm found in Salery’s possession.

Because of this corroboration, we agree with the district court that although the

testimony included hearsay, it was sufficiently reliable to support a factual finding.

See id. As a result, Salery’s convictions and sentence are affirmed.

      AFFIRMED.




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