                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4843


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TRAVIS LEON HAGLER, a/k/a Black Jesus,

                Defendant - Appellant.



                              No. 08-5012


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TYRONE NOBLE,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.      Joseph F. Anderson, Jr.,
District Judge. (3:06-cr-00748-JFA-5; 3:06-cr-00748-JFA-9)


Submitted:   March 10, 2010                 Decided:   March 25, 2010


Before MICHAEL, GREGORY, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Janis Richardson Hall, Greenville, South Carolina; Kirsten E.
Small, NEXSEN PRUET, LLC, Greenville, South Carolina, for
Appellants. Robert Frank Daley, Jr., Jimmie Ewing, Assistant
United States Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Travis Leon Hagler and Tyrone Noble pled guilty to a

crack      cocaine    conspiracy       and       were    sentenced       to    240    and     252

months in prison, respectively.                       Under the terms of their plea

agreements, Hagler and Noble agreed to waive the right to appeal

their       convictions        and     sentences,            except      for     claims        of

ineffective         assistance        or      prosecutorial            misconduct.             In

addition,      Hagler      reserved        the       right   to   appeal       the    district

court’s conclusion that he had a prior felony for sentencing

purposes.

              The Government moves to dismiss the appeals based upon

the appellate waivers.               Counsel for each defendant has filed an

Anders 1 brief, and each defendant filed a pro se supplemental

brief.       Hagler’s counsel raised the issue of whether Hagler’s

Fed. R. Crim. P. 11 hearing was properly conducted, and Hagler

raised pro se challenges to the prior conviction used to enhance

his       minimum     sentence.              Noble’s         counsel     challenged           the

voluntariness of the guilty plea, as well as Noble’s sentencing

enhancements         based    upon     his       leadership       role    and    his     prior

conviction.          Noble’s    pro     se    brief      reargued       claims       raised    by

counsel      and    also     asserted      that       his    sentence     was    improperly

enhanced based on his possession of a firearm.

      1
          Anders v. California, 386 U.S. 738 (1967).



                                                 3
                                          I.

             A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                           See United

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).                         We review

the validity of an appellate waiver de novo and will uphold a

waiver of appellate rights if the waiver is valid and the issue

being appealed is covered by the waiver.                   See United States v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).                   An appellate waiver

is   generally      considered    to     be    knowing    and    voluntary    if   the

district court specifically questioned the defendant concerning

the waiver provision during the Rule 11 colloquy and the record

indicates that the defendant understood the full significance of

the waiver and was not denied effective assistance of counsel.

See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

However,     even    a   valid   appellate      waiver    does    not   waive     every

appellate issue.          See, e.g., United States v. Attar, 38 F.3d

727, 732-33 & n.2 (4th Cir. 1994) (holding that waiver of appeal

does   not     bar       colorable     constitutional           challenge    to     the

voluntariness of a guilty plea).

             During the Defendants’ Rule 11 hearings, the district

court specifically questioned them about the appellate waivers

and,   after     doing     so,   found    that     they    had     voluntarily     and

intelligently entered their pleas.                 The record reveals nothing

to suggest that the district court’s finding was erroneous, and


                                          4
neither Defendant raises a claim regarding the appellate waiver. 2

Accordingly, we conclude that the appellate waivers contained in

the Defendants’ plea agreements are valid and enforceable.

                 Moreover,    the    Defendants’           appellate   waivers    of    the

right       to    appeal     their       convictions         and   sentences   encompass

Hagler’s assertions of Rule 11 error, 3 as well as Noble’s claims

of sentencing error.           Thus, we grant the Government’s motions to

dismiss in part.           Hagler’s claims regarding his prior conviction

were       specifically      excepted       from       the     appellate   waiver,      and

Noble’s      assertion       that    his    plea       was   involuntary    may   not   be

waived.          Accordingly,       we    deny       the   Government’s    motions     with

regard to these claims.



                                             II.

                 Noble contends that his plea was not constitutionally

valid because his mental illness prevented the plea from being

       2
       Noble claims that his mental illness rendered his guilty
plea involuntary and unknowing.    As discussed above, a claim
attacking the voluntariness of the guilty plea cannot be waived;
as such, this claim will be examined on the merits.     However,
Noble does not specifically allege that his waiver was unknowing
or involuntary.    In any event, even should Noble’s claim be
expanded to attack the validity of his waiver, it is meritless
for the reasons discussed below.
       3
       Rule 11 error is not constitutional error, see McCarthy v.
United States, 394 U.S. 459, 465 (1969), and Hagler makes no
allegation that any Rule 11 error affected the voluntariness of
his plea.




                                                 5
voluntary or intelligent.             He also asserts that the court should

have held a competency hearing.                    The standard for determining

whether a guilty plea is constitutionally valid is whether the

plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.                             Burket v.

Angelone, 208 F.3d 172, 190 (4th Cir. 2000).                            In applying this

standard,       courts   look    to    the       totality     of    the    circumstances

surrounding the plea.           Id.     “The test for determining competency

is    whether    [a   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 as a

factual understanding of the proceedings against him.”                               United

States v. General, 278 F.3d 389, 395-96 (4th Cir. 2002).

            At    Noble’s    plea      hearing,        he    testified      that    he    had

never been treated for a mental illness, and both his counsel

and   the   Government      stated      that      they      had    no   questions     about

Noble’s competency.          The court then found Noble competent to

plead guilty.         Throughout the remainder of the plea hearing,

Noble    responded       appropriately           and   predictably         and     gave   no

indication that he was unable to understand the proceedings.                              He

testified that he was satisfied with his attorney and understood

the charges against him.              He also affirmed that the Government’s

statement of facts was correct.




                                             6
               At     sentencing,    Noble’s      counsel    stated    that    he     was

appointed after a psychiatric examination was conducted.                            After

speaking       with    Noble     extensively,     the    psychiatrist     determined

that   he      was    competent     to   stand    trial,    and   Noble’s     attorney

stated that he did not “have a question about his competency.”

However, counsel noted that Noble suffered from post traumatic

stress    disorder,       major     depression,     a   cognitive     disorder,       and

substance       abuse     issues.        He   argued     that,    while   Noble      was

competent, he had certain difficulties making judgment calls.

When Noble allocuted, he spoke rationally and logically about

his criminal conduct and how his past convictions were impacting

his sentencing exposure.

               On     appeal,      Noble      frivolously        argues      that    the

psychiatric          examination     supported      his     claim     that     he    was

incompetent, even though the report actually concluded that he

was competent.           Noble also asserts that prison officials have

told him that he has severe memory problems.                        We find that it

was clear from the proceedings that Noble was able to consult

with     his    lawyer     and     had   a    rational      understanding      of    the

proceedings against him.             While he apparently had certain mental

issues, there is no evidence that his competency was affected.

As such, the district court did not err in failing to hold a

competency hearing and in determining that Noble was competent

to enter a plea.


                                              7
                                             III.

              Hagler asserts that the Government did not serve a

proper notice of prior conviction under 21 U.S.C. § 851 (2006),

that the court did not explicitly ask him whether he affirmed or

denied    the      prior    conviction,       and    that    he   was   not   given   an

adequate opportunity to object to the use of the conviction.

The record belies Hagler’s contentions.                     Prior to Hagler’s plea,

the     Government     filed       a   notice       of    enhancement     listing     the

specific prior conviction that would be used to enhance Hagler’s

sentence.       In his plea agreement, he specifically reserved the

right    to   challenge       the      use   of     his   prior   conviction,       which

further shows his notice and understanding that the Government

intended      to    use     the     conviction       to     enhance     his   sentence.

Additionally,         his         presentence        report       (“PSR”)      included

calculations based upon his prior conviction, and Hagler did not

object.       Hagler was free to challenge his prior conviction at

sentencing or before, but he did not do so.                           Even on appeal,

Hagler does not explain why the use of his prior conviction was

improper; he argues only that the court did not utilize the

appropriate procedures.

              Regarding the sentencing colloquy, § 851(b) requires

that, when the Government has filed an § 851 notice, the court

should ask the Defendant “whether he affirms or denies that he

was previously convicted as alleged” and inform the Defendant


                                              8
that “any challenge to a prior conviction which is not made

before    sentence       is    imposed      may    not    thereafter      be    raised      to

attack the sentence.”              However, literal compliance with the Rule

is not necessary if it is clear from the circumstances that the

defendant       does     not       contest        the     validity       of    his        prior

convictions.          United States v. Steen, 55 F.3d 1022, 1028 (5th

Cir. 1995).

             Here,      it    is    clear    that        Hagler    was    aware      of    the

Government’s use of the prior conviction and that he withdrew

any objection to it.            At his plea hearing, the disagreement over

the prior conviction and its ramifications on his sentence were

explained       in    detail,      and   Hagler     stated        that   he    understood.

Then,    when    he    was    specifically         and    personally      questioned        at

sentencing, he affirmed that he was withdrawing all objections

to the PSR.          Thus, because Hagler knew about the enhancement and

made clear his position on it, any error by the district court

in failing to conduct an explicit colloquy prior to sentencing

was harmless.



                                             IV.

             Finally,         Hagler     asserts         that     the    Government        was

required to prove his prior conviction beyond a reasonable doubt

in   order   to      enhance       his   sentence.         However,      Hagler’s     prior

conviction, which increased the mandatory minimum but had no


                                             9
effect on the statutory maximum, need only be determined by a

preponderance of the evidence.                See United States v. Estrada,

428 F.3d 387, 389-91 (2d Cir. 2005).                    Moreover, as discussed

above, Hagler did not dispute the existence or validity of the

conviction.        Further,      because    Hagler      failed    to    object,      the

district court was not required to hold a hearing or to make

specific findings of fact before adopting the recommendations in

the PSR.      United States v. Love, 134 F.3d 595, 606 (4th Cir.

1998).

             Pursuant to Anders, we have examined the entire record

in   these    cases      for   reversible     error     and     have    found    none.

Accordingly, we dismiss Hagler’s appeal from his conviction and

Noble’s appeal from his sentence.                We affirm Hagler’s sentence

and Noble’s conviction.           We deny Noble’s motions to place his

appeal in abeyance.

             This court requires that counsel inform her client, in

writing,     of   his    right   to   petition    the    Supreme       Court    of   the

United States for further review.                 If either of the clients

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation.                      Counsel’s

motion must state that a copy thereof was served on the client.

We   dispense     with    oral   argument     because     the    facts    and    legal




                                         10
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                AFFIRMED IN PART;
                                                DISMISSED IN PART




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