United States v. Hargrave

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2003
• Docket: 02-30583
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 9, 2003

Charles R. Fulbruge III No. 02-30583 Clerk Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CEDRIC DEWAYNE HARGRAVE, also known as Black, also known as Ceddie, also known as Ced,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana (00-CR-52-1-C)

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Cedric Dewayne Hargrave appeals the denial of his motion to

withdraw his guilty plea and his sentence following his guilty-plea

conviction of conspiracy to possess with intent to distribute

cocaine, distribution of cocaine, laundering of monetary

instruments, and unlawful use of a communications facility.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. The ruling on a motion to withdraw a guilty plea is reviewed

only for abuse of discretion. E.g., United States v. Bounds, 943

F.2d 541, 543 (5th Cir. 1991). Hargrave contends that the district

court abused its discretion in denying his motion because it was

only after the plea was entered that the defense learned of facts

that would substantially increase his sentence. Although Hargrave

waived his right to appeal his sentence (with certain exceptions)

as part of his plea, that waiver is enforceable, of course, only if

the plea agreement is valid. See United States v. White, 307 F.3d

336, 343 (5th Cir. 2002).

In denying the motion to withdraw, the district court

considered the seven factors found in United States v. Carr, 740

F.2d 339, 343-44 (5th Cir. 1984), cert. denied, 471 U.S. 1004

(1985), and concluded that the plea agreement was valid. Hargrave

has not shown that the court abused its discretion.

Hargrave also contends that the district court failed to

address the basis of his motion to withdraw, i.e., that the plea

was not knowingly and voluntarily entered because there was no

meeting of the minds during the plea negotiations. The knowing and

voluntary factor is one of those the district court considered.

After hearing extensive testimony on what transpired during the

plea negotiations, the district court determined that the plea was

knowing and voluntary because: Hargrave repeatedly indicated that

he understood the legal principles that the court explained to him;

2 his education level and business acumen; and his above-average

intelligence. The district court also found it had been explained

to Hargrave that: his actual sentence would be determined by the

Sentencing Guidelines; anything anyone had told him about the

effect of the Guidelines only represented his or her best estimate

of the effect of the Guidelines; and the determination of the

sentence would be by the court. Hargrave has not shown that his

plea was not knowing and voluntary.

Hargrave also maintains that his sentence was excessive

because the district court should have sustained his objections to

the presentence report and that the fine, penalty, and fees should

be vacated. Hargrave does not assert that the waiver provision in

the plea agreement was not knowing and voluntary but only that the

plea agreement itself was not valid. Because Hargrave entered his

plea knowingly and voluntarily, the waiver of appeal is sustained.

See White, 307 F.3d at 343-44. Hargrave’s contention regarding his

sentence is not one of the subjects excepted from the appeal-waiver

and is thus barred.

AFFIRMED