                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,

    v.                                                  No. 10-3071
                                              (D.C. No. 5:09-CR-40024-JAR-1)
    ANTOINE CARDIN WILLIAMS,                              (D. Kan.)

                Defendant!Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.



         Pursuant to a plea agreement, Antoine Cardin Williams pleaded guilty to

distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1);

robbery of a federal agent in violation of 18 U.S.C. § 2112; use and brandishing

of a weapon during and in relation to a crime of violence in violation of 18 U.S.C.

§§ 924(c)(1)(A) and 2; assault on a federal agent in violation of 18 U.S.C.



*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
§§ 111(a), 111(b) and 2; and possession of a firearm by a prohibited person in

violation of 18 U.S.C. § 922(g). The court sentenced him to 204 months’

imprisonment. Despite having waived his right to appeal, Mr. Williams appealed.

The United States has moved to enforce the appeal waiver pursuant to United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

      Under Hahn, we consider: “(1) whether the disputed appeal falls within the

scope of the waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” Id. at 1325. Mr. Williams argues only

that the waiver was not knowing and voluntary. He states he has been assessed

with an IQ of 69, and a defense-requested psychological evaluation placed his

intelligence in the extremely low range. He also points to several incidents in his

past that contributed to his cognitive difficulties. As a result, he contends, “it is

questionable whether [he] was capable of knowingly waiving his appellate

rights.” Resp. at 3.

      It is not clear whether Mr. Williams’ suggestion that he was not “capable”

is intended to allege that he was not mentally competent to waive his right to

appeal. See Godinez v. Moran, 509 U.S. 389, 400-01 (1993) (instructing district

courts, in the context of guilty pleas and waiver of counsel, to determine

competency, then to satisfy themselves that the waiver of constitutional rights is

knowing and voluntary). But an assertion that Mr. Williams was not competent to

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waive his right to appeal would necessarily also imply that he was not competent

to plead guilty. See id. at 404 (Kennedy, J., concurring in part and concurring in

the judgment) (“The Due Process Clause does not mandate different standards of

competency at various stages of or for different decisions made during the

criminal proceedings.”). Given that the docketing statement identifies the

reasonableness of the sentence as the sole appeal issue, it does not appear that

Mr. Williams wishes to contest the acceptance of his guilty plea. Thus, we

proceed under the assumption that he does not challenge the district court’s

determination of competency.

      “The purpose of the ‘knowing and voluntary’ inquiry . . . is to determine

whether the defendant actually does understand the significance and consequences

of a particular decision and whether the decision is uncoerced.” Godinez,

509 U.S. at 401 n.12 (emphasis omitted). We consider “whether the language of

the plea agreement states that the defendant entered the agreement knowingly and

voluntarily” and whether there is “an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. Mr. Williams bears the

“burden to present evidence from the record establishing that he did not

understand the waiver.” United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir.

2003). “A mere silent record does not satisfy this burden.” Id. at 873.

      Both the plea agreement and the plea colloquy indicate that Mr. Williams

was informed of the appeal waiver and that he knowingly and voluntarily

                                         -3-
accepted it. In the paragraph addressing the appeal waiver, the plea agreement

stated that the waiver was knowing and voluntary. Mot. to Enforce, Attach. (Plea

Agreement) at 8. Just before the signatures, the agreement provided that

Mr. Williams had read and understood the plea agreement, and that it was “true

and accurate and not the result of any threats, duress or coercion.” Id. at 10.

“The defendant acknowledges that the defendant is entering into this agreement

and is pleading guilty because the defendant is guilty and is doing so freely and

voluntarily.” Id. In addition, at the plea colloquy, the district court ascertained

that Mr. Williams can read. Id., Attach. (Change of Plea Transcript) at 3. The

prosecutor summarized the terms of the plea agreement, including the appeal

waiver, and the court confirmed that Mr. Williams understood and agreed with the

prosecutor’s statements. Id. at 6-7. The court further confirmed that it was

Mr. Williams’s decision to enter into the plea agreement and that he was doing so

voluntarily. Id. at 7-8. And the court addressed the waiver provision:

      As part of the plea agreement you understand that you are agreeing to
      give up your right to appeal from issues concerning the investigation
      and the prosecution and the sentence in this case, with certain
      exceptions? You’re not going [to] be able to appeal from issues
      regarding the investigation, prosecution, or conviction in this case, or
      sentence in this case. Do you understand that?

Id. at 8. Mr. Williams answered “Yes, ma’am.” Id.

      Mr. Williams does not identify any evidence showing that he did not

understand the appeal waiver (as distinguished from difficulties he may have had


                                          -4-
in understanding other legal issues that arose during the colloquy). Having been

found competent, he cannot rely solely on low intelligence to create a

presumption that he could not knowingly and voluntarily waive his right to

appeal. Cf. Fields v. Gibson, 277 F.3d 1203, 1215 n.7 (10th Cir. 2002) (“Absent

a finding of incompetence, evidence regarding Fields’s below-average

intelligence does not establish that the guilty plea was involuntary.”); Wolf v.

United States, 430 F.2d 443, 445 (10th Cir. 1970) (“The presence of some degree

of mental disorder in the defendant does not necessarily mean that he is

incompetent to knowingly and voluntarily enter a plea.”); see also Smith v.

Mullin, 379 F.3d 919, 933 (10th Cir. 2004) (concluding that defendant diagnosed

with mild-to-borderline mental retardation knowingly and intelligently waived his

Miranda rights).

      Because Mr. Williams does not identify any evidence showing a lack of

understanding with regard to the appeal waiver, he has not met his burden to show

that the waiver was not knowing and voluntary. The motion to enforce the appeal

waiver is GRANTED, and this appeal is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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