United States of America v. Tariq A. Vaughn

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4519
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TARIQ A. VAUGHN,
Defendant – Appellant.
No. 09-4565
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TARIQ A. VAUGHN,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge; Richard L. Williams, Senior District Judge. (3:08-cr-
00468-HEH-1; 3:02-cr-00075-RLW-1)
Submitted: August 5, 2010 Decided: September 16, 2010
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.

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No. 09-4519 dismissed; No. 09-4565 affirmed by unpublished per
curiam opinion.
Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Olivia N. Hawkins, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In February 2002, Tariq Vaughn was indicted for
possession of a firearm in furtherance of a drug trafficking
offense in violation of 18 U.S.C. § 924(c) (2006). Vaughn plead
guilty and was sentenced to 72 months’ imprisonment, followed by
a three-year term of supervised release.
In September 2008, following his release from prison,
Vaughn was arrested by local authorities in Richmond, Virginia,
and found to be in possession of “crack” cocaine. In October
2008, Vaughn appeared before the district court and plead guilty
to various violations of his supervised release term, including
possession of crack cocaine; however, the hearing was continued
to allow the new criminal charges to be adjudicated.
In November 2008, Vaughn was indicted for possession
with intent to distribute more than five grams of cocaine base
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (2006).
Vaughn plead guilty and was sentenced to 240 months’
imprisonment. At the same time he was sentenced on the
possession charge, Vaughn was also sentenced for the supervised
release violation. Ultimately, Vaughn received an additional
36 months’ imprisonment for the supervised release violation, to
be served consecutive to his sentence for drug possession.
These matters were consolidated for review on appeal.

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Vaughn first challenges the adequacy of his guilty
plea to the drug possession charge. The Government has moved to
dismiss this portion of his appeal based on an appellate waiver
clause in his plea agreement. The motion will be granted.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v.
Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005). Whether a
defendant validly waived his right to appeal is a question of
law that this court reviews de novo. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). To determine whether a
waiver is knowing and intelligent, this court examines “the
totality of the circumstances.” United States v. General,
278 F.3d 389, 400 (4th Cir. 2002). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Rule 11 colloquy, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005); United States v. Wessells, 936 F.2d 165,
167-68 (4th Cir. 1991).
Vaughn argues the Government’s motion should be denied
solely because he told the district court he took medication for
certain non-descript “impulse control” problems at his plea
colloquy, thereby placing the court under a heightened duty to
investigate his mental state to determine whether he was
competent to enter a guilty plea, which he maintains, the court

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did not adequately do. Vaughn makes this argument despite the
fact that both he and his attorney unequivocally stated at the
Rule 11 hearing that he could communicate and understand the
proceedings. Vaughn has not cited any pertinent authority to
support his position.
“Absent clear and convincing evidence to the
contrary,” a defendant is generally bound by statements made
under oath during his Rule 11 plea colloquy. See Fields v.
Att’y Gen. of State of Md., 956 F.2d 1290, 1299 (4th Cir. 1992);
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (a
defendant’s declarations in court affirming a plea agreement
“present a formidable barrier in any subsequent . . .
proceedings”) (internal quotation marks omitted). Here, Vaughn
has not presented any evidence, much less clear and convincing
evidence, to contradict his statements to the district court
that neither his “impulse control” problem, nor the drugs he was
taking for it, affected his decision-making ability.
Accordingly, we find that Vaughn remains bound by his
in-court statements. Because Vaughn’s plea was knowingly and
intelligently given, and because this portion of his appeal
falls squarely within the scope of the appellate waiver to which
he agreed, we grant the Government’s motion and dismiss
Vaughn’s appeal in No. 09-4519.

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Vaughn also argues that the district court failed to
adequately explain his within-guidelines sentence for his
supervised release violation. This court generally reviews
sentences imposed upon revocation of supervised release to
determine whether: (1) they are within the prescribed statutory
range; and (2) they are “plainly unreasonable.” United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). Here,
however, the Government argues that plain-error review should be
applied because Vaughn did not adequately preserve an objection
to the district court’s explanation of his sentence.
In order to preserve his claim for appellate review, a
defendant must lodge a contemporaneous objection to the district
court’s explanation or “ask for a sentence outside the range
calculated by the court prior to sentencing.” See United States
v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). It is
undisputed that Vaughn failed to lodge a contemporaneous
objection to the district court’s explanation; thus, the
threshold question becomes whether Vaughn asked for “a sentence
outside the range calculated by the court prior to sentencing.”
Below, Vaughn’s attorney merely stated that he did not
believe that Vaughn’s conduct “warrant[ed] a maximum sentence,”
and he asked the court “to consider something less than that,”
though he did not offer any suggestion as to what he thought
might be an appropriate sentence. These vague statements are

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insufficient to preserve an objection to the adequacy of the
district court’s explanation. As was the case in United
States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010), where
defendant Avery Peake failed to “ask the court to depart from
the correctly calculated Guidelines range,” Vaughn is not
entitled to a full appellate review of this issue. Accord
United States v. Bostic, No. 09-4251, 2010 WL 1735509, at *1
(4th Cir. April 29, 2010) (applying plain-error review where
defendant “did not argue for a sentence outside of his
guidelines range”).
To establish plain error, Vaughn must show that an
error: (1) was made; (2) is plain (i.e., clear or obvious); and
(3) affects his substantial rights. United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Even if he
makes this three-part showing, this court may exercise its
discretion to correct the error only if it “seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Id. at 343 (internal quotation marks omitted).
Vaughn has failed to meet this burden. Accordingly, we affirm
the sentence imposed upon Vaughn following his supervised
release violation.

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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
No. 09-4519 DISMISSED
No. 09-4565 AFFIRMED

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