                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0249n.06

                                           No. 08-4730
                                                                                    FILED
                          UNITED STATES COURT OF APPEALS                         Apr 22, 2010
                               FOR THE SIXTH CIRCUIT                       LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
ANTHONY L. HALL, JR.,                            )   NORTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )



       Before: GUY, COLE and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Anthony Hall claims that the district court improperly accepted

his guilty plea and misapplied the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), in

sentencing him. Because Hall voluntarily pled guilty and because he waived his sentencing claim,

we affirm.


                                                I.


       On January 12, 2008, police officers from the Cuyahoga Metropolitan Housing Authority

arrived at Hall’s home to investigate an anonymous tip that Hall had a firearm there. PSR ¶ 6; R.11

at 3–4. A search of the apartment revealed a .357 magnum under the sofa, which Hall, a felon,

admitted was his. On February 13, 2008, a federal grand jury indicted Hall for being a felon in
No. 08-4730
United States v. Hall

possession of a firearm. See 18 U.S.C. § 922(g)(1). The district court accepted Hall’s unconditional

guilty plea to the indictment.


        At Hall’s sentencing hearing, the district court determined that Hall’s criminal history

subjected him to ACCA, requiring a 15-year mandatory minimum sentence, see 18 U.S.C.

§ 924(e)(1). The court asked Hall if he objected to this conclusion; he did not. After considering

the sentencing guidelines and the § 3553(a) factors, the court sentenced Hall to 15 years. Hall timely

appeals, challenging the validity of his guilty plea and his sentence.


                                                  II.


        Hall claims that the district court violated Rule 11(b)(2) of the Federal Rules of Criminal

Procedure because it failed to ensure that his guilty plea was “voluntary and did not result from force,

threats, or promises.” Hall did not raise this objection during his plea colloquy with the district

court, requiring us to review the district court’s actions for plain error. See Fed. R. Crim. P. 51(b),

52(b); United States v. Vonn, 535 U.S. 55, 59 (2002). A district court commits plain error when it

makes an “obvious or clear” error that “affected [the] defendant’s substantial rights” and that

“affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.

Gardiner, 463 F.3d 445, 459 (6th Cir. 2006). Hall bears the burden of meeting this standard. See

United States v. Barnett, 398 F.3d 516, 535 (6th Cir. 2005).


        Because guilty pleas amount not only to an admission of culpable conduct but also to a

waiver of constitutional rights, the government may not obtain “a plea by actual or threatened

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physical harm or by mental coercion overbearing the will of the defendant.” Brady v. United States,

397 U.S. 742, 748–50 (1970). To this end, a district court “must address the defendant personally

in open court and determine that the plea is voluntary and did not result from force, threats, or

promises (other than promises in a plea agreement).” Fed. R. Crim. P. 11(b)(2).


       In this instance, the district court touched all of the relevant bases in addressing Hall in court

about the nature and circumstances of his plea. It addressed Hall’s competence, his representation,

the elements of the charged crime, the sentencing consequences, including the 15-year statutory

minimum sentence, the factual basis for the plea, and his constitutional rights. So far so good, as all

of Hall’s answers indicated that he understood what he was doing.


       A complication arose, however, at the end of the hearing, when Hall and the court had the

following exchange:


       THE COURT: All right. Is your plea voluntary?
       THE DEFENDANT: No, sir.
       THE COURT: It’s not voluntary?
       THE DEFENDANT: No.


R.44 at 26–27. Had the Rule 11 proceeding ended at this point, the court could not have accepted

Hall’s plea, in view of Hall’s answer. But the court continued, asking Hall what he meant.


       THE COURT: What’s involuntary about it?
       THE DEFENDANT: I don’t want to be doing this.


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       THE COURT: I understand that. Has anyone promised you anything in return for
       this guilty plea?
       THE DEFENDANT: No.
       THE COURT: Is anyone forcing you into entering this plea?
       THE DEFENDANT: The United States Government.
       THE COURT: Or are you doing it on [your] own?
       THE DEFENDANT: Yes, I’m doing it on my own, sir.
       THE COURT: I know it’s no fun. All right. The court, having fully advised the
       defendant of the effect of his plea, finds the plea to have been freely and voluntarily
       made with full knowledge of the consequences. Therefore, the court will accept the
       plea and adjudge the defendant guilty.


R.44 at 26–27.


       The district court did not plainly err in accepting the plea. As the full context of this

exchange shows, and as the prior exchanges with the judge confirm, Hall knew what he was doing

and voluntarily did it. Only a single-minded focus on the initial exchange suggests otherwise, but

context in this area (and so many others) is everything. “The voluntariness of [a] plea can be

determined only by considering all of the relevant circumstances surrounding it.” Brady, 397 U.S.

at 789. As the follow-up questions and answers show, Hall simply did not like the choice he faced:

a guilty plea accompanied by a long sentence or a trial accompanied by the risk of a longer sentence.

Hall’s answer to the court’s later questions show that no one forced him to enter the plea and that

he was not promised anything for entering the plea. And while, quite understandably, he might not

have been pleased about entering the plea, he acknowledged that he was making the decision to do




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so on his own. See R.44 at 26–27 (“THE COURT: Or are you doing it on [your] own? THE

DEFENDANT: Yes, I’m doing it on my own, sir.”).


       Supporting this conclusion is the reality that Hall has never offered a theory or explanation

for why he did not act voluntarily in signing the plea agreement. He does not claim that the

government coerced him into pleading guilty or otherwise acted improperly in the plea negotiations.

He does not claim that the court badgered him into signing the plea. And he does not claim that his

attorney gave him bad advice or otherwise misled him in entering the plea. His theory of coercion

instead ultimately rests on the reality that his conduct forced him to a difficult choice between two

unattractive options: going to trial or pleading guilty. That, however, is not a cognizable theory of

coercion. An involuntary plea is not the same thing as a plea that “I don’t want to be doing this,”

when neither the government nor the court nor his attorney has improperly forced the defendant’s

hand and when the defendant’s reluctance stems from the difficult choice before him, and nothing

more. A guilty plea is not compelled, as the Supreme Court has explained, “whenever motivated by

the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a

wider range of possibilities extending from acquittal to conviction and a higher penalty authorized

by law for the crime charged.” Brady, 397 U.S. at 751.


       Still, Hall reminds us, a district court must be reversed when it fails “meticulously” to follow

Rule 11. United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir. 2007). Instead of taking him

at his word that he was signing the plea agreement “on [his] own,” R.44 at 26, he says that the court

should have initiated a “deeper probe” into his intentions, Hall’s Br. at 17. No doubt, one more

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United States v. Hall

question and answer—further confirming the voluntariness of the plea—would have helped matters.

But it was not plain error to stop when the court did. There was a prelude before Hall’s initial

suggestion and an epilogue after it, and both of them sufficiently established that Hall’s plea was

voluntary in a constitutional and Rule 11 sense.


       Hall persists that Mack v. United States, 635 F.2d 20 (1st Cir. 1980), which required a district

court to allow a defendant to plead anew, requires a different outcome. But the analogy does not

hold. When asked during a plea colloquy to comment on a psychiatric report, Mack stated that he

had been “beaten” and “drugged” and that he was “being pressured into making the plea” against his

“own free will.” Id. at 23. The court cut him off and reiterated that it wanted to hear only comments

to the report. Later in the plea hearing, when it came time to discuss voluntariness, the court simply

asked, “Is your plea entirely free and voluntary?” and the defendant answered “Yes, it is.” Id. at 24.

Unlike the district court in Mack, the district court here asked follow-up questions in response to the

claimed coercion; the court asked Hall an open-ended question and gave him an opportunity to

elaborate on his claims; and Hall made no specific allegations of coercion, even when given a chance

to do so.


                                                 III.


       Hall also challenges the district court’s ACCA enhancement. But Hall waived this claim at

his sentencing hearing by agreeing that the enhancement applies, and at any rate he cannot overcome

his conceded forfeiture of this argument.


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       “[W]aiver is the intentional relinquishment or abandonment of a known right.” United States

v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). Although we may review forfeited

claims, which like Hall’s Rule 11 claim were raised for the first time on appeal, for plain error, see

United States v. Stines, 313 F.3d 912, 917–18 (6th Cir. 2002), we may not review waived claims at

all, see United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002). A defendant waives

a known claim by “agree[ing] in open court with a judge’s proposed course of conduct.” Id.; see

also Lanham v. United States, 4 F. App’x 313, 315 (6th Cir. 2001) (defendant waives his claim by

failing to object, when asked, to ACCA designation in Pre-Sentence Report).


       The record confirms that Hall knew about the court’s proposed ACCA sentencing

enhancement, yet he intentionally waived that objection. At Hall’s plea hearing, his counsel

“retain[ed] th[e] right” to “dispute” that Hall “qualified as an armed career criminal” when the time

came at sentencing. R.44 at 11. When the time for sentencing came, however, Hall apparently had

changed his mind. Hall’s counsel argued that the circumstances surrounding Hall’s arrest (he

allegedly acquired the handgun to protect himself from two violent neighbors) should have led the

U.S. Attorney to exercise more prosecutorial discretion. In making this argument, counsel conceded

ACCA’s applicability to Hall: “I recognize my client has the criminal history that he does, and I

certainly understand that he’s a, pursuant to statute, an armed career criminal.” R.45 at 5. He also

admitted that Hall was subject to a “15[-]year[] minimum mandatory” sentence. Id. at 6. Hall

cannot now argue that the district court erred in applying ACCA when he expressly conceded the

point at sentencing. See Aparco-Centeno, 280 F.3d at 1088.


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       Hall resists this conclusion, claiming that he could waive the argument only by objecting to

the ACCA determination and then making an “actual, affirmative withdrawal” of that objection.

Hall’s Reply Br. at 14. His counsel merely “failed to renew” his ACCA objection when given the

opportunity, he says, meaning we should consider the objection forfeited and thus subject to plain

error review. Id. at 13. No doubt, the withdrawal of an objection would constitute a waiver. See,

e.g., United States v. Denkins, 367 F.3d 537, 543–44 (6th Cir. 2004); United States v. Sheppard, 149

F.3d 458, 461 (6th Cir. 1998). But we have never held that a defendant must make an objection,

then withdraw it, before the point can be waived. In Aparco-Centeno, the defendant at sentencing

“explicitly agreed” with the Pre-Sentence Report’s characterization of his previous convictions as

“aggravated felonies” by reiterating that characterization in his sentencing memorandum. 280 F.3d

at 1087–88. When he later appealed his sentence, we held that his claim was waived. Id. at 1088.

So too here: Hall acknowledged the accuracy of the court’s ACCA determination and reiterated the

applicability of the statutory 15-year mandatory minimum at sentencing, waiving any claim that

ACCA should not apply.


       But we need not rest our decision on this point alone. Even if Hall had not waived his ACCA

claim, he forfeited it by failing to object to the district court’s ACCA determination when given the

opportunity and therefore cannot prevail without showing that the district court plainly erred. See

United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc). At sentencing the court

agreed with the Pre-Sentence Report’s finding that Hall “meets the definition of an armed career

criminal” and was “subject to the mandatory minimum sentence of 15 years under 18 U.S.C.


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§ 924(e).” R.45 at 4; see PSR ¶ 29. Immediately after explaining ACCA’s applicability to Hall and

the corresponding mandatory minimum sentence, the court asked, “Are there any objections to the

court’s findings with respect to the applicable guidelines and/or the mandatory minimum sentence,”

to which Hall’s counsel replied, “No, your Honor.” R.45 at 4. He also failed to raise an ACCA

argument at the end of the hearing when the judge asked one last time for objections. Id. at 14.


        The court did not plainly err in treating Hall as an “armed career criminal.” According to

Hall, his two prior convictions for aggravated robbery do not categorically count as violent felonies

under 18 U.S.C. § 924(e). But, as we held in United States v. Sanders, 470 F.3d 616, 619–22 (6th

Cir. 2006), “aggravated robbery under Ohio law constitutes a predicate violent felony within the

meaning of . . . ACCA.” Sanders, true enough, dealt with the former version of Ohio’s aggravated

robbery statute, O.R.C. § 2911.01 (1983) (amended 1997). But the part of § 2911.01 that Hall

claims does not categorically constitute a violent felony, § 2911.01(A)(2), represents a portion of the

former version of the statute that remains: While § 2911.01 formerly prohibited “hav[ing] a deadly

weapon or dangerous ordnance . . . on or about [the offender’s] person or under his control” when

committing or attempting a theft or fleeing from a theft attempt, § 2911.01(A)(2) now prohibits

“hav[ing] a dangerous ordnance on or about the offender’s person or under the offender’s control”

during such a theft or attempt. In this respect, there has been no material change to the provision,

establishing that Sanders still controls and the district court did not plainly err in following it.




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                                        IV.


       For these reasons, we affirm.




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