UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4661

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSHUA MICHAEL COGDELL,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., District 

Judge. (3:07-cr-01521-JFA-2)

Submitted: February 12, 2010 Decided: March 5, 2010

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

John D. Clark, CLARK LAW FIRM, LLC, Sumter, South Carolina, for 

Appellant. W. Walter Wilkins, United States Attorney, Stanley 

D. Ragsdale, Assistant United States Attorney, Columbia, South 

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

Joshua Michael Cogdell pled guilty to two counts in a 

nine-count superseding indictment for armed bank robbery, in 

violation of 18 U.S.C. § 2113(a) and (d) (2006), and for use of 

a firearm in furtherance of a crime of violence, in violation of 

18 U.S.C. § 924(c) (2006). At sentencing, Cogdell objected to 

the inclusion in his presentence report (“PSR”) of a 2006 state 

court conviction for possession with intent to distribute 

cocaine (“the 2006 conviction”). The 2006 conviction was 

determined to be a predicate offense for the purpose of 

designating Cogdell as a career offender under the U.S. 

Sentencing Guidelines (“USSG”) § 4B1.1 (2008). Cogdell argued

that his guilty plea for the 2006 conviction was obtained 

without the assistance of counsel. The court found that Cogdell 

had knowingly and voluntarily waived his right to counsel, 

adopted the presentence report (“PSR”) in its entirety, and 

sentenced Cogdell to 308 months in prison as a result of his 

designation as a career offender. Cogdell appeals, arguing 

that the district court erred in designating him as a career 

offender under USSG § 4B1.1 because he did not knowingly and 

intelligently waive the right to counsel at the plea hearing for 

the 2006 conviction. 

To be classified as a career offender under § 4B1.1, 

the defendant must have been at least eighteen years old at the 
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time he committed the offense of conviction, the offense of 

conviction must be “a crime of violence or a controlled 

substance offense,” and the defendant must have two prior felony 

convictions “of either a crime of violence or a controlled 

substance offense.” USSG § 4B1.1(a). Generally, unless a prior 

conviction has been “reversed, vacated, or invalidated in a 

prior case,” the court must count the conviction as a predicate 

conviction. United States v. Bacon, 94 F.3d 158, 161 (4th Cir. 

1996). Moreover, defendants typically cannot collaterally 

challenge a predicate conviction during a sentencing proceeding. 

See id. at 163-64. The exception to this rule permits a 

defendant to challenge the convictions used to enhance his 

sentence when such convictions are “obtained in the absence of 

counsel.” Id. at 162 (citing Custis v. United States, 511 U.S. 

485 (1994)). When a defendant challenges his conviction on this 

ground, “[t]he determination of whether the right to counsel has 

been waived is a question of law that we review de novo.” 

United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004). When 

a defendant raises this type of challenge to a prior conviction, 

he “bears an especially difficult burden of proving that the 

conviction was invalid.” Id. 

It is well-settled that waiver of one’s right to 

counsel “must be a ‘knowing, intelligent, ac[t] done with 

sufficient awareness of the relevant circumstances.’” Iowa v. 
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Tovar, 541 U.S. 77, 81 (2004) (quoting Brady v. United States, 

397 U.S. 742, 748 (1970)) (alteration in original). In the 

context of acceptance of a guilty plea from an uncounseled 

defendant, there is no specific warning “mandated by the Sixth 

Amendment,” nor has the Supreme Court “prescribed any formula or 

script to be read to a defendant who states that he elects to 

proceed without counsel.” Id. at 81, 88. Instead, “[t]he 

information a defendant must possess in order to make an 

intelligent election . . . will depend on a range of 

case-specific factors, including the defendant’s education or 

sophistication, the complex or easily grasped nature of the 

charge, and the stage of the proceeding.” Id. at 88. However, 

the Supreme Court has explained that generally, “[t]he 

constitutional requirement is satisfied when the trial court 

informs the accused of the nature of the charges against him, of 

his right to be counseled regarding his plea, and of the range 

of allowable punishments attendant upon the entry of a guilty 

plea.” Id. at 81. 

The record demonstrates that Cogdell, a high school 

graduate who had a number of prior convictions for which he had 

been represented by counsel, was informed by the state court 

judge that he was charged with possession with intent to 

distribute, that he faced a maximum of fifteen years in prison, 

and that if he wished to be represented at his plea he was 
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entitled to counsel. Moreover, the judge expressed his strong 

belief that Cogdell should not proceed without counsel, stated 

that doing so was unwise especially in a criminal proceeding, 

and told Cogdell that if he wished to reconsider representation, 

he would be permitted to do so at any time prior to entry of his 

plea. The transcript of the challenged guilty plea also shows 

that the Government recited the factual basis for the charge, to 

which Cogdell agreed; made clear that it was going to recommend 

a concurrent two-year sentence; and noted that it had shared all 

discovery with Cogdell prior to the plea. Finally, the court 

warned Cogdell of the rights he was giving up by accepting the 

plea, reminded him that if he went to trial the Government would 

bear the burden of proof on the charge, and confirmed multiple 

times that Cogdell wished to plead guilty. There is nothing in 

the record apart from Cogdell’s own self-serving statements to 

demonstrate that Cogdell’s waiver was not freely, intelligently, 

or voluntarily made, or that the circumstances relevant to this 

particular charge and defendant rendered the waiver involuntary. 

Therefore, the district court did not err in finding that 

Cogdell waived his right to counsel in state court, and in using 

the resulting conviction to sentence him as a career offender.

Accordingly, we affirm the district court’s conviction 

and sentence. We dispense with oral argument because the facts 

and legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED