                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0858n.06
                           Filed: November 22, 2006

                                           No. 05-3857

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES,                                            )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT     FOR    THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
JOVITO STELL,                                             )
                                                          )            MEMORANDUM
       Defendant-Appellant.                               )              OPINION




BEFORE:        GIBBONS and McKEAGUE, Circuit Judges; and TARNOW, District Judge.*

       PER CURIAM. Defendant-appellant Jovito Stell pleaded guilty to being a felon in

possession of a firearm. He was sentenced to 92 months in prison. He contends on appeal that his

plea was not intelligent and voluntary because he was not advised that his conviction constituted a

parole violation that could result in additional imprisonment after completion of his 92-month

sentence. For the reasons that follow, we affirm the judgment of the district court.

                                                 I

       The material facts are not disputed. Jovito Stell was pulled over by a Cleveland police officer

for speeding on July 22, 2003. As he later explained in a post-arrest interview, Stell had been

_________________________

      * The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-3857
United States v. Stell

paroled from prison a mere four months earlier. Being in possession of a 9mm handgun, he was

fearful of being arrested, and so, as the officer questioned him, Stell drove off. After a high speed

chase, which ended when Stell lost control of his vehicle and crashed into a utility pole, Stell was

arrested.

       Stell was charged with being a felon in possession of a firearm and ammunition, in violation

of 18 U.S.C. § 922(g)(1). Stell pleaded guilty to the charge pursuant to a plea agreement and was

sentenced to a prison term of 92 months. After commencing his federal prison sentence, Stell

received notice that Ohio authorities had lodged a detainer against him and that he would be held,

on completion of his federal sentence, to answer for his parole violation This ostensibly came as

a surprise to Stell. He timely filed notice of appeal to challenge the validity of his plea-based

conviction. The issue raised on appeal is whether Stell’s plea was invalid because not knowingly

and voluntarily entered into, as he was not advised when his plea was accepted that his conviction

constituted a parole violation.

                                                 II

       The government first contends the court should not reach the merits of Stell’s claim, but

should dismiss the appeal, because Stell waived his right to appeal. Indeed, ¶ 17 of the plea

agreement clearly provides that Stell waived his right to appeal, except upon grounds not here

applicable. Such a waiver of appeal is generally enforceable – as long as it is made knowingly and

voluntarily. United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004); United States v.

Calderon, 388 F.3d 197, 199 (6th Cir. 2004).



                                                -2-
No. 05-3857
United States v. Stell

        The enforceability of the appellate waiver thus turns on the very same questions that are

implicated by Stell’s claim that his plea is not valid. If the plea agreement is held to be

unenforceable and the plea invalid because Stell’s decision to plead guilty was not knowing and

voluntary, then the appellate waiver, as part of the plea agreement, likewise falls. Conversely, if the

district court’s failure to advise Stell of the parole violation consequences of his plea does not

invalidate his plea, then Stell’s appellate claim will be denied on the merits for the very same reasons

that the appellate waiver would be enforced. The government’s assertion of the appellate waiver

thus provides no grounds to avoid the merits of Stell’s appellate claim; the voluntariness of the plea

must be examined.

                                                  III

        After making inquiry of Stell and his attorney at the plea hearing about the terms of the plea

agreement, the district court expressly found that Stell’s plea was “voluntary and intelligent.” It is

undisputed, however, that neither Stell’s attorney nor the district court expressly advised him, when

he entered his plea, that his conviction would constitute a violation of the terms of his parole,

exposing him to the possibility of additional imprisonment. This failure by the district court, Stell

contends, was in violation of the Rule 11 requirement that the court not accept the plea without first

determining that the plea is made voluntarily with understanding of the nature of the charge. See

Fed. R. Crim. P. 11. This voluntariness determination required the district court to ensure that

defendant Stell was informed of all the “direct consequences” of his plea. Brady v. United States,

397 U.S. 742, 755 (1970). Stell contends the parole violation consequences of his plea are “direct



                                                 -3-
No. 05-3857
United States v. Stell

consequences.” The district court’s failure to inform him of these consequences is said to have been

in error, rendering his plea other than knowing and voluntary, and therefore invalid.

        Stell’s claim depends fundamentally on a showing that parole violation consequences

represent direct consequences, of which the district court was obliged to inform him before it

accepted his plea. The claim is unsupported in the case law. None of the cases cited by Stell

specifically supports the proposition.

        In response, however, the government cites persuasive authority for the proposition that

parole violation consequences are “collateral consequences,” not direct consequences. In King v.

Dutton, 17 F.3d 151, 153-54 (6th Cir. 1994), the Sixth Circuit explained that the district court has

no obligation to inform the defendant of possible collateral consequences of his plea. A direct

consequence is a result flowing from a plea that is “definite, immediate, and automatic.” Id. at 154-

55. “A collateral consequence is one that ‘remains beyond the control and responsibility of the

district court in which that conviction was entered.’” El-Nobani v. United States, 287 F.3d 417, 421

(6th Cir. 2002) (quoting United States v. Gonzales, 202 F.3d 20, 27 (1st Cir. 2000)).

        In El-Nobani, the Sixth Circuit held that the possibility of deportation, even though it was

practically automatic, was a collateral consequence of a conviction. Among other examples of

collateral consequences, like a conviction’s possible enhancing effect on subsequent sentences, the

King court also expressly noted that a defendant need not be informed of the details of his parole

eligibility. 17 F.3d at 153-54. In fact, the Sixth Circuit has specifically held that parole ineligibility,

even though automatic, is not a “direct consequence” of the defendant’s plea within the meaning of

Brady. Brown v. Perini, 718 F.2d 784, 788-89 (6th Cir. 1983).

                                                   -4-
No. 05-3857
United States v. Stell

        Further, in Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir. 2003), the court held that a district

court had no obligation to inform the defendant that his pilot’s license would be revoked as a result

of his guilty plea, because the license revocation was a matter beyond the control and responsibility

of the district court. On the other hand, where suspension of a defendant’s driver’s license was an

automatic and direct consequence of his plea, to be effected by the same court that accepted his plea,

the court’s failure to advise him of this consequence was deemed to render the plea not “knowing.”

Hall v. Gainsheimer, 137 F. App’x 866, 869 (6th Cir. 2005) (unpublished).

        In view of these authorities, it is clear that the possibility that Ohio authorities will use Stell’s

instant conviction as a parole violation to extend his term of imprisonment for his earlier state

convictions, being a matter beyond the control and responsibility of the district court, is a collateral

consequence. As such, the district court was not obliged to inform Stell of the parole violation

consequences. While it may represent the better practice for the district court to so advise a

defendant before accepting his plea, neither the Constitution nor Rule 11, under the law of this

circuit, makes such advisement requisite to a finding that a plea is knowingly and voluntarily made.

        Moreover, although it is clear that the district court did not advise Stell of the parole violation

consequences, the record evidences a strong likelihood that Stell was well aware the felon-in-

possession offense would be a violation of the terms of his parole. In a post-arrest interview with

police on July 24, 2003, Stell admitted that he tried to escape when he was pulled over because he

had a gun and was on parole. He had been paroled a mere four months earlier and his extensive

criminal history demonstrates that he was no stranger to the criminal justice system. On appeal, Stell

has not attempted to disavow or explain away his post-arrest statement. In fact, nowhere in his

                                                   -5-
No. 05-3857
United States v. Stell

appellate brief does Stell even aver that he was unaware his conviction would constitute a parole

violation. He contends only that he was not so informed by his attorney or the district court.

       Accordingly, Stell has failed to establish that his plea was other than knowing and voluntary.

The district court did not err by accepting the plea. The plea is therefore valid and Stell’s conviction

must be upheld.1

                                                    IV

       For the foregoing reasons, the district court’s judgment is AFFIRMED.




       1
           In his appellate brief, Stell identifies one of the issues presented for review as follows:

       Whether Defendant’s attorney had a duty to inform Defendant that Defendant’s guilty
       plea and subsequent sentence to 92 months in prison was also a parole violation,
       exposing Defendant to additional prison time.

The brief otherwise contains no mention of the issue and Stell does not argue the point even
superficially. No matter how liberally construed, Stell’s brief simply cannot reasonably be deemed
to assert a claim of error based on defense counsel’s ineffective assistance. Stell has neither
identified a factual basis nor formulated a legal argument for a putative ineffective assistance claim.
We therefore decline to recognize that any such claim has been asserted. See United States v.
Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (holding that issues adverted to in a perfunctory
manner, unaccompanied by some developed argumentation, are deemed waived); United States v.
Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004) (same).


                                                   -6-
