                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1649
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Andre G. Dewberry

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
             for the Western District of Missouri - Western Division
                                 ____________

                           Submitted: January 16, 2019
                             Filed: August 27, 2019
                                 ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

GRASZ, Circuit Judge.

      Andre Dewberry pled guilty to being a felon in possession of a firearm. As
required by the binding plea agreement, the district court1 sentenced Dewberry to 60
months of imprisonment. Dewberry appeals, arguing he was denied his Sixth


      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
Amendment right to self-representation. We hold he waived the challenge by
pleading guilty and accordingly affirm the judgment.

                                 I. Background

       In January 2015, the Kansas City, Missouri Police Department stopped a
vehicle driven by Dewberry, who was a convicted felon. Police observed Dewberry
exit the vehicle and toss a black handgun underneath. Police recovered a pistol from
under the car.

       A grand jury indicted Dewberry on one charge of felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court
appointed a public defender to represent Dewberry. Eventually, Dewberry requested
permission to proceed pro se. The magistrate judge granted Dewberry’s request and
appointed the same public defender as standby counsel. Dewberry later moved to
have the district court appoint substitute counsel. The district court denied the
motion, giving Dewberry three options: (1) continue to represent himself; (2) hire a
new attorney; or (3) request that the public defender resume representation.

      During a pretrial conference held days before the scheduled trial, after some
back and forth with Dewberry regarding an evidentiary issue as it related to
Dewberry’s defense strategy, the district court terminated Dewberry’s pro se
representation and reappointed the public defender as counsel. Dewberry voiced his
objection to the reappointment.

      Before trial, Dewberry pled guilty to the charge in a plea agreement. The plea
agreement included a binding term of 60 months of imprisonment under Fed. R.
Crim. P. 11(c)(1)(C). The plea agreement also contained an appeal waiver, providing
that Dewberry waived his right to appeal or collaterally attack a finding of guilt



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following the acceptance of this plea agreement. The appeal waiver included the
following provision:

      The defendant expressly waives his right to appeal his sentence, directly
      or collaterally, on any ground except claims of (1) ineffective assistance
      of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An
      “illegal sentence” includes a sentence imposed in excess of the statutory
      maximum, but does not include less serious errors, such as
      misapplication of the [United States] Sentencing [Commission]
      Guidelines, an abuse of discretion, or an imposition of an unreasonable
      sentence.

       The public defender represented Dewberry at the change of plea hearing. The
district court accepted the plea after engaging in a Rule 11 plea colloquy to determine
Dewberry’s plea was knowing, voluntary, and made after being advised of his trial
and constitutional rights. The district court asked Dewberry three times if he had
been threatened or coerced in any manner to cause him to enter into this plea, to
which he answered no each time. The district court also read the appeal waiver and
asked Dewberry if he understood it, to which Dewberry responded yes.

      In the presentence investigation report, Dewberry’s United States Sentencing
Commission Guidelines Manual (“Guidelines”) range was calculated as 46 to 57
months of imprisonment. At the sentencing hearing, the district court formally
accepted the plea agreement and sentenced Dewberry to the agreed-upon term of 60
months of imprisonment.

      In March 2017, Dewberry filed a pro se document, which we treated as a
Notice of Appeal. The public defender then filed an Anders brief, see Anders v.
California, 386 U.S. 738 (1967), expressing her view the plea agreement prohibited
an appeal of the issues on which Dewberry wished to proceed. However, the public



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defender also asserted the district court violated Dewberry’s Sixth Amendment right
to proceed pro se.

       We appointed Dewberry new counsel under the Criminal Justice Act and
ordered the parties to brief the following issues: (1) whether Dewberry’s plea of
guilty waived his ability to challenge the denial of his Sixth Amendment right to self-
representation; and (2) whether Dewberry’s conduct warranted the district court’s
denial of self-representation. In its briefing, the government conceded Dewberry’s
conduct did not justify the district court’s denial of Dewberry’s right to proceed pro
se, but argued the reappointment of counsel was warranted because Dewberry did not
unequivocally assert his right to self-representation when asked by the district court
during the pretrial evidentiary hearing. The government also argued Dewberry
waived his right to appeal by pleading guilty.

                                    II. Analysis

       Before considering whether the district court violated Dewberry’s Sixth
Amendment right to self-representation, see Faretta v. California, 422 U.S. 806
(1975), we will address whether he waived his right to appeal the district court’s
alleged denial of this right by pleading guilty. We conclude Dewberry waived his
right to appeal this claim.

       “A valid guilty plea . . . waives a defendant’s ‘independent claims relating to
the deprivation of constitutional rights that occurred prior to’ pleading guilty.”
United States v. Pierre, 870 F.3d 845, 848 (8th Cir. 2017) (quoting Tollett v.
Henderson, 411 U.S. 258, 267 (1973)); see also United States v. Limely, 510 F.3d
825, 827 (8th Cir. 2007) (stating a “valid guilty plea is an admission of guilt that
waives all non-jurisdictional defects and defenses”). “[C]ase-related constitutional
defects” are made “irrelevant to the constitutional validity of the conviction” by a
guilty plea “[b]ecause the defendant has admitted the charges against him.” Class v.

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United States, 138 S. Ct. 798, 804–05 (2018) (quoting Haring v. Prosise, 462 U.S.
306, 321 (1983)).

      However, a guilty plea does not waive all claims. A waiver does not occur, for
example, when the defendant’s plea was not made intelligently, voluntarily, and with
the advice of counsel. See Tollett, 411 U.S. at 265. Nor does a guilty plea waive a
defendant’s right to facially challenge the Government’s ability to constitutionally
charge him in the first place. See Class, 138 S. Ct. at 805–06 (holding a guilty plea
did not waive an argument that the government did not have the power to criminalize
the charged and admitted conduct); United States v. Broce, 488 U.S. 563, 575 (1989)
(quoting Menna v. NY, 423 U.S. 61, 62 n.2 (1975)) (“[A] plea of guilty to a charge
does not waive a claim that — judged on its face — the charge is one which the State
may not constitutionally prosecute.”).

       The first task before us then is to decide whether the Sixth Amendment right
to represent oneself is the type of right that is waived by a voluntary and intelligent
guilty plea or whether it fits into an exception. Although we have never answered
this question directly, other circuits have.

       The majority of the circuits to reach the issue have held a defendant waives the
right to bring a claim for a potential violation of the right to proceed pro se by
pleading guilty. See United States v. Moussaoui, 591 F.3d 263, 280 (4th Cir. 2010)
(holding a defendant’s guilty plea foreclosed his Faretta challenge); Werth v. Bell,
692 F.3d 486, 497 (6th Cir. 2012) (same); Gomez v. Berge, 434 F.3d 940, 942–43
(7th Cir. 2006) (same); United States v. Montgomery, 529 F.2d 1404, 1406–07 (10th
Cir. 1976) (holding the same and observing a contrary conclusion would “open the
door to manipulations and gamesmanship”).

     The only circuit to hold otherwise is the Ninth Circuit. See United States v.
Hernandez, 203 F.3d 614, 627 (9th Cir. 2000) (overruled on other grounds by Indiana

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v. Edwards, 554 U.S. 164 (2008)). In Hernadez, the Ninth Circuit held that because
the district court wrongly denied the defendant’s request to represent himself, it
rendered his guilty plea involuntary. 203 F.3d at 627. The court reasoned the
“district court’s refusal to allow [the defendant] to exercise the right of self-
representation forced him to choose between pleading guilty and submitting to a trial
the very structure of which would be unconstitutional.” Id. at 626. This choice
placed “unreasonable constraints” on his decision to plead guilty. Id. The court
stated: “When a defendant is offered a choice between pleading guilty and receiving
a trial that will be conducted in a manner that violates his fundamental Sixth
Amendment rights, his decision to plead guilty is not voluntary.” Id. at 627. The
court reasoned that the decision was not voluntary because “he ha[d] not been offered
the lawful alternative—free choice—the Constitution requires.” Id.

       Dewberry urges us to follow an approach nearly identical to the one used in
Hernandez and hold his guilty plea was involuntary based on the earlier denial of his
right to represent himself. But we see no basis to conclude a district court’s improper
denial of a defendant’s Sixth Amendment right to self-representation categorically
transforms the defendant’s later decision to plead guilty into a per se involuntary
decision. As the Fourth Circuit explained, Hernandez’s rationale is based on the false
premise that the defendant who is denied his right to represent himself is forced to
either plead guilty or submit to an unconstitutional trial. Moussaoui, 591 F.3d at 280.
The premise is faulty because “if the defendant proceeded to trial and was convicted,
he could seek an appellate remedy for the constitutional violations he alleged.” Id.
In addition, we have noted that “if a defendant wishes to preserve his right to appeal,
he should enter a conditional plea of guilty, ‘reserving in writing the right to have an
appellate court review an adverse determination of a specified pretrial motion.’”
Limely, 510 F.3d at 827 (quoting Fed. R. Crim. P. 11(a)(2)).

     More importantly, the approach used in Hernandez is inconsistent with
Supreme Court precedent. See Luce v. United States, 469 U.S. 38, 42 (1984) (holding

                                          -6-
that in order to preserve a claim of improper impeachment the defendant is required
to testify at trial); Tollett, 411 U.S. at 267 (“[A] guilty plea represents a break in the
chain of events which has preceded it in the criminal process.”). That precedent
informs us that “case-related constitutional defects” are made “irrelevant to the
constitutional validity of the conviction” by a later guilty plea “[b]ecause the
defendant has admitted the charges against him.” Class, 138 S. Ct at 804–05 (quoting
Haring, 462 U.S. at 321). Hernandez’s approach turns the rule on its head by making
a defendant’s admission of guilt irrelevant because of an earlier purported case-
related constitutional defect. Therefore, we join the majority of circuits and hold a
potential violation of the right to proceed pro se does not, in and of itself, render a
plea involuntary.

       Based on the above analysis, we conclude Dewberry waived his right to bring
his Sixth Amendment claim unless he can show us on the specific facts of his case
that he did not enter the plea knowingly and voluntarily. Based on the current record,
we have no basis to reach such a conclusion.

       At the change of plea hearing, the district court complied with Fed. R. Crim P.
11(b) in its colloquy with Dewberry, which is strong evidence the plea was knowing
and voluntary. The district court personally addressed Dewberry in open court and
made sure he knew and understood his rights and that he was waiving his trial rights
if his plea was accepted. The district court also went over the plea terms with
Dewberry and repeatedly questioned him to ensure the plea was voluntary and did not
result from force, threats, or coercion. This detailed record of questioning about
Dewberry’s understanding supports the district court’s finding he knowingly and
voluntarily entered the plea.

       We therefore hold Dewberry waived his right to challenge the district court’s
decision to deny him his Sixth Amendment right to represent himself. Although the
district court may have violated Dewberry’s right to self-representation, Dewberry is

                                           -7-
barred from bringing his appeal on this record. Therefore, we decline to address the
merits of this Sixth Amendment argument.

                                   III. Conclusion

      For the reasons set forth herein, we affirm.

KELLY, Circuit Judge, concurring in the judgment.

       In my view, the record makes clear that the district court violated Dewberry’s
right to self-representation when it reappointed counsel to represent him. The
presence of that structural error may have rendered Dewberry’s guilty plea
involuntary. But because the current record is not fully developed on the second
issue, I would not decide it on direct appeal. I therefore concur in affirming the
judgment.

       This court reviews de novo a district court’s refusal to allow a defendant to
represent himself. See United States v. LeBeau, 867 F.3d 960, 973 (8th Cir. 2017).
“A request to proceed pro se is constitutionally protected only if it is timely, not for
purposes of delay, unequivocal, voluntary, intelligent and the defendant is
competent.” Jones v. Norman, 633 F.3d 661, 667 (8th Cir. 2011) (cleaned up); see
also Faretta, 422 U.S. at 835–36. Here, the magistrate judge found that Dewberry’s
request to represent himself checked all of the Faretta boxes, and so he granted
Dewberry’s request. No one challenges that ruling. When the district court later
terminated Dewberry’s representation, it explained that it did so “to get this plea
worked out” and to “help [him] get ready for trial.” But these are not valid reasons
to bar a defendant from representing himself. See United States v. Smith, 830 F.3d
803, 810 (8th Cir. 2016) (“Defendants have a right to present unorthodox defenses
and argue their theories to the bitter end. . . . [F]ailure to respond to a proposed plea
agreement [does not] warrant denial of the right of self-representation at trial.”

                                          -8-
(cleaned up)). Thus, the district court impermissibly denied Dewberry his right to
represent himself at trial.

       That brings me to the only issue addressed by the court: whether Dewberry
waived his right to self-representation by pleading guilty. The denial of the right to
self-representation is a structural error. See United States v. Gonzalez-Lopez, 548
U.S. 140, 148–49 (2006); see also McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).
But it seems that structural errors “can still be waived.” Jackson v. Bartow, 930 F.3d
930, 934 (7th Cir. 2019) (“[T]he consequence of a ‘structural’ error is that it is not
subject to harmless-error review; but such errors can still be waived.” (citation
omitted)); see also Moussaoui, 591 F.3d at 280 n.12. So I agree with the court that
the outcome of Dewberry’s appeal hinges on whether his guilty plea was knowing
and voluntary. This is the sort of issue that is often better deferred to post-conviction
proceedings under 28 U.S.C. § 2255, as it usually involves facts outside the original
record. See United States v. Agboola, 417 F.3d 860, 864 (8th Cir. 2005); United
States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990). I see no reason to depart from
the usual rule here, as an invalid plea “is not readily apparent in the current record.”
Agboola, 417 F.3d at 864. But Dewberry is not barred from challenging the validity
of his guilty plea—or raising a claim of ineffective assistance of counsel—in a post-
conviction proceeding.
                         ______________________________




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