United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1553

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United States of America, *

*

Plaintiff – Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Dustin Taylor, *

* 

Defendant – Appellant. *

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Submitted: November 13, 2007

 Filed: February 8, 2008

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Before MELLOY, BEAM, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Pursuant to a plea agreement, Dustin Taylor pled guilty to an information

charging him with being a felon in possession of ammunition in violation of 18 U.S.C.

§ 922(g)(1). Under the plea agreement, Taylor waived his rights to appeal his guilt

and sentence. Subsequently, he moved to withdraw his guilty plea before and during

the sentencing hearing. The district court denied Taylor’s motions, finding that Taylor

did not have a fair and just reason to withdraw his plea. See Fed. R. Crim. P.

11(d)(2)(B). Taylor appeals the district court’s denial of his motions to withdraw his

guilty plea. Taylor now claims that he was under the influence of marijuana and

lithium, a depression medication, at his change of plea hearing and suffered from

bipolar disorder, and thus he did not knowingly and voluntarily enter a guilty plea.
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Taylor also alleges that the district court failed to conform the hearing to the

requirements of Rule 11. See Fed. R. Crim. P. 11(b). We affirm.

I. Background

A. Change of Plea Hearing

At the change of plea hearing on August 30, 2006, Taylor pled guilty to the

charge of being a felon in possession of ammunition. The district court questioned

Taylor, his counsel, and a pretrial services officer regarding Taylor’s drug use,

medical history, mental state, and understanding of the proceedings. The court asked

Taylor whether he was “now under the influence of any alcohol, drugs, or

medication.” Taylor responded that he was only under the influence of lithium, a

depression medicine he had been taking for the past couple months. The court asked

Taylor whether he considered himself competent to enter a guilty plea, and Taylor

responded affirmatively, “Yes, sir, I do.” The district court asked if Taylor was or had

been diagnosed with any mental disease, excluding his recent depression diagnosis.

Taylor answered affirmatively, but stated that his memory was not good and turned

to the officer. The officer stated he was only aware of Taylor’s recent depression and

anxiety issues. 

Taylor insisted that he had been diagnosed with another mental disease when

he was in his early twenties (he was twenty-nine at the time of the plea), had received

medication, but did not take the medication because he “was young and dumb.” The

officer suggested that Taylor was referring to information that Taylor received from

prior counsel who advised him that he might have had post-traumatic stress disorder.

The court asked Taylor about the officer’s suggestion, and Taylor agreed that it was

what he was referring to, but stated, “Yeah, bipolar.” The court asked, “Bipolar?”

Taylor nodded his head. The court asked Taylor’s then-current counsel about

Taylor’s post-traumatic stress disorder. Taylor’s counsel stated that Taylor might
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have previously been diagnosed with bipolar disorder and post-traumatic stress

disorder, but the diagnoses were not recent. Taylor interjected, “Huh-uh. No.” 

Taylor’s counsel continued: “when I have met with Dustin, which has been on several

occasions and spoken with him on the phone, I believe all of his responses are

appropriate and I believe he is competent.”

The court told Taylor that by pleading guilty, Taylor was waiving some of his

rights. Taylor acknowledged this fact. The court explained many of these rights,

including the right to counsel at trial, the right to a presumption of innocence, the right

to a jury trial, and the right to call witnesses. The court then asked Taylor if he

understood the waiver of those rights, and Taylor stated, “Yes, sir, I do.” The court

inquired about the plea agreement, and Taylor said that his counsel read the agreement

to him and answered his questions about it and that they discussed its terms. Taylor

stated that he understood the terms in the agreement and understood that they all

applied to him. The court directed Taylor to specific paragraphs detailing facts of the

offense, statutory penalties, conditions of supervised release, and waiver of appellate

rights. Taylor acknowledged that he understood the terms within each of those

paragraphs. 

The court asked: “Do you understand that once I accept your plea of guilty

today—that’ll be when I do that—that I’m not going to let you later withdraw it just

because you change your mind?” Taylor responded, “Yes, sir.” The court asked

Taylor again if he understood, and Taylor responded affirmatively. Taylor

acknowledged that he could not withdraw his plea of guilty just because he might

dislike the sentence that the court could give to him. Taylor denied that anyone

pressured or coerced him into making the plea or promised him what the court would

do at sentencing. Taylor stated that he had had sufficient time to discuss his decision

to plead with counsel and was satisfied with his counsel’s representation.
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Ultimately, the court found “that the defendant understands the charge against

him and the consequences of his plea” and that “[t]he defendant has been advised of

his rights, understands them, and voluntarily and intelligently waives those rights.”

The court found that Taylor did not suffer from a mental disease that “would affect

his ability to understand the nature and consequences of his acts.” The court also

found that the lithium did not affect Taylor’s ability to assist counsel in his defense.

The court found that “[t]he defendant’s decision to plead guilty has been made freely

and voluntarily and without coercion.”

When the court brought up the topic of bond, the court acknowledged that

Taylor tested positive for marijuana that morning and stated “that’s not very smart.”

The court noted that Taylor repeatedly had violated some conditions of his release on

bond following his initial appearance before a magistrate judge. The court stated that

“the one issue you need to get under control is your drug use because that’ll just get

you in trouble some more.” The court did not discuss the marijuana test’s

implications on Taylor’s ability to knowingly and voluntarily enter a guilty plea.

B. Motions to Withdraw Guilty Plea

A probation officer submitted a final presentence investigation report on

November 30, 2006. The probation officer recommended a denial of an adjustment

for acceptance of responsibility for Taylor’s ongoing unlawful conduct while released

on bond during pretrial supervision. Taylor had contact with a government witness

and thrice tested positive for marijuana. Taylor was also charged with third degree

assault. In addition, Taylor declined to discuss the offense of conviction with the

probation officer during a presentence investigation interview and provided a written

statement instead. The probation officer’s recommendation against an adjustment for

acceptance of responsibility contrasted with the government’s position in the plea

agreement that the government would file a written motion for such an adjustment. 
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On December 12, 2006, Taylor’s counsel moved to withdraw as counsel

because Taylor requested her withdrawal and the appointment of new counsel.

Taylor’s counsel cited an irreconcilable conflict and ineffective communication

between Taylor and herself. A magistrate judge granted leave to Taylor’s counsel and

appointed new counsel on December 19, 2006.

In a pro se filing on January 18, 2007, Taylor gave notice of his intent to

withdraw his “involuntary” plea of guilty at the next scheduled hearing in his case.

He “[sought] to contest the merits of this matter on the grounds that he [was] not

guilty, there [was] no factual basis for the plea, and the plea violate[d] due process,

as counsel coerce[d] or otherwise undermined the procedure.” In a pro se motion

mailed on February 18, 2007, Taylor moved the district court for an order, based on

his unopposed January 18 filing, to withdraw the purportedly involuntary plea entered

under the coercion of his first counsel.

On February 23, 2007, the district court considered Taylor’s motions pursuant

to Federal Rule of Criminal Procedure 11(d). After reviewing the transcript of

Taylor’s change of plea hearing, the district court first found that it had already

accepted the plea agreement and that Taylor admitted the government’s allegations

under oath. The court next noted that Taylor had stated his understanding that he

could not later withdraw his guilty plea if he changed his mind, had admitted no one

coerced his plea, and acknowledged his satisfaction with the representation of his

counsel. The court found that Taylor failed to show a fair and just reason for

requesting withdrawal.

On March 1, 2007, Taylor filed pro se objections to the district court’s denial

of his motions. Taylor, for the first time, asserted that he was under the influence of

two drugs during the change of plea hearing, and as a result, he failed to make a

knowing and voluntary plea. He also requested an evidentiary hearing regarding his

innocence. 
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On March 1, 2007, the district court considered Taylor’s March 1 motion. 

After reviewing the transcript of the change of plea hearing, the district court found

that Taylor testified under oath that he was competent to enter a plea and voluntarily

entered it. The court denied Taylor’s motion and did not disturb its February 23 order.

On March 5, Taylor wrote a letter to the district court. Taylor alleged that he

“was made to plea” guilty without understanding that he was admitting guilt to an

offense he did not commit and without understanding that he was waiving substantial

constitutional rights. As the result of being under the influence, he only “vaguely

remember[ed] the mistake [he] made.” He again alleged that his first counsel coerced

his involuntary plea.

C. Sentencing Hearing

On March 5, 2007, the district court began Taylor’s sentencing hearing by

acknowledging receipt of Taylor’s March 5 letter and denying it, to the extent it was

a request for the court to reconsider its February 23 order. The court explained that

it had discussed all plea-related factors with Taylor at the change of plea hearing and

that Taylor had understood and agreed to the change of plea. The court concluded that

Taylor had simply changed his mind.

Taylor claimed that he lied under oath when he pled guilty to possession of

ammunition. He explained that on “that morning I tested positive for marijuana and

I was in a bad state on depression.” He alleged that he and his first counsel both had

psychiatric evaluations performed and that his counsel read her evaluation instead of

his evaluation. Taylor questioned this action, and his counsel allegedly stated “if the

judge would have heard [Taylor’s], then he’d have locked [Taylor] up indefinitely in

a mental institution.” Taylor also alleged that although he testified under oath that he

was satisfied with his first counsel’s representation, he lied and actually was unhappy

with her representation. He wrote a letter to send to the court about his dissatisfaction,
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but he did not mail it after his counsel read it, begged him not to mail it, and agreed

to withdraw from the case. In the letter, Taylor allegedly discussed being threatened

and promised certain things. He alleged that his counsel told him what to say in

court—plead guilty to being a felon in possession of ammunition, even though he was

charged with being a felon in possession of a firearm.

The district court asked Taylor whether he understood what it meant to tell the

truth under oath the day of his change of plea hearing. Taylor responded he

understood then and that he “understood a lot of things that day.” The district court

stated that he would abide by the record of the change of plea hearing and stick with

the guilty plea made therein. 

After considering the Guidelines and other § 3553(a) factors, the district court

sentenced Taylor to 100 months’ imprisonment and three years of supervised release.

II. Discussion

A. Waiver of Appellate Rights

We first discuss whether Taylor’s waiver of appellate rights bars him from

seeking relief in this court. “When reviewing a purported waiver, we must confirm

that the appeal falls within the scope of the waiver and that both the waiver and plea

agreement were entered into knowingly and voluntarily.” United States v. Andis, 333

F.3d 886, 889-90 (8th Cir. 2003) (en banc); see United States v. McIntosh, 492 F.3d

956, 959 (8th Cir. 2007). In the plea agreement, Taylor waived “his right to appeal

or collaterally attack a finding of guilt following the acceptance of this plea

agreement” and waived “his right to appeal his sentence, directly or collaterally, on

any ground except a sentence imposed in excess of the statutory maximum or an

illegal sentence.” In his appeal, Taylor’s argument goes to the fundamental Andis

issue of whether the plea agreement, which contained the appeal waiver, was entered
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into knowingly and voluntarily. In essence, he is arguing that if he was not competent

to plead, he could not knowingly and voluntarily enter into a plea agreement that

contained an appeal waiver. We agree the appeal waiver does not foreclose our

consideration of the competency issue. If a defendant is not competent to plead

because of mental disease or defect or because he is under the influence of drugs, an

appeal waiver cannot cure that deficiency. We thus have jurisdiction to review the

merits of Taylor’s appeal.

B. Compliance with Rule 11(b)

Taylor alleges that the district court failed to conform the hearing to the

requirements of Rule 11. We hold that the district court properly conducted the

change of plea hearing in accordance with Rule 11(b). Before accepting Taylor’s

plea, the district court discussed the right to a jury trial, the right to confront adverse

witnesses, the waiver of trial rights, the statutory penalties, and the waiver of appellate

rights under the plea agreement. See Fed. R. Crim. P. 11(b)(1). The district court

determined the plea was voluntary after addressing Taylor personally and inquiring

about any promises, pressure, or coercion regarding the plea. See Fed. R. Crim. P.

11(b)(2). The district court also asked questions to determine there was a factual basis

for the plea. See Fed. R. Crim. P. 11(b)(3). Despite this holding, we do note,

however, the district court could have inquired more extensively in other areas. One

of Taylor’s complaints is that the district court should have made a more searching

inquiry into the circumstances of his positive test for marijuana. It may have been

preferable for the district court to ask about recency of use and any effects the

marijuana use had on Taylor. However, given the intensive colloquy the district court

had with Taylor and its ability to personally observe Taylor’s conduct and hear his

answers, we are convinced the district court committed no error in finding Taylor

competent.
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C. Denial of Motions to Withdraw Plea

Taylor seeks reversal of the district court’s denial of his motions to withdraw

his guilty plea. If a defendant presents a “fair and just reason” for the withdrawal, the

defendant may withdraw a guilty plea after the court’s acceptance of the plea, but

before sentencing. Fed. R. Crim. P. 11(d)(2)(B); United States v. Maxwell, 498 F.3d

799, 800 (8th Cir. 2007). We review the district court’s denial of a motion to

withdraw a guilty plea for abuse of discretion. Maxwell, 498 F.3d at 801. We give

deference to the district court judge because he is in a better position to find facts,

make credibility determinations, and become familiar with the individual case and

defendant than this court. Gall v. United States, 128 S. Ct. 586, 597-98 (2007). 

The district court had ample evidence supporting its finding that Taylor

knowingly and voluntarily entered a guilty plea. The district court inquired into

Taylor’s mental state and medications during the change of plea hearing. Taylor

stated at the hearing that he was only under the influence of lithium for treatment of

his depression, and not marijuana, and was competent to enter a plea. He also stated

that he did not suffer from bipolar disorder and post-traumatic stress disorder. The

district court thoroughly and carefully explained the consequences of pleading guilty,

and Taylor repeatedly stated that he understood those explanations. The district court

asked Taylor’s counsel whether she believed Taylor was competent, and she

responded affirmatively.

We conclude that the district court did not abuse its discretion by denying

Taylor’s motions to withdraw his guilty plea. Taylor failed to show a fair and just

reason for requesting the withdrawal. At no time did Taylor allege to the district court

that he was under the influence of marijuana at the change of plea hearing. He first

made this allegation on appeal. He damaged his credibility by admitting during the

sentencing hearing that he lied under oath on multiple occasions during the change of

plea hearing. Finally, we note that Taylor waited until after preparation of the
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presentence report, which recommended denial of acceptance of responsibility, and

more than four months after entering his guilty plea to challenge the plea. The district

court did not abuse its discretion in questioning Taylor’s motives and discounting his

claim of lack of competency.

III. Conclusion

We affirm the judgment of the district court.

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