UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4843

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TRAVIS LEON HAGLER, a/k/a Black Jesus,

Defendant - Appellant.

No. 08-5012

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TYRONE NOBLE,

Defendant - Appellant.

Appeals from the United States District Court for the District 

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

District Judge. (3:06-cr-00748-JFA-5; 3:06-cr-00748-JFA-9)

Submitted: March 10, 2010 Decided: March 25, 2010

Before MICHAEL, GREGORY, and AGEE, Circuit Judges.
2

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Janis Richardson Hall, Greenville, South Carolina; Kirsten E. 

Small, NEXSEN PRUET, LLC, Greenville, South Carolina, for 

Appellants. Robert Frank Daley, Jr., Jimmie Ewing, Assistant 

United States Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Travis Leon Hagler and Tyrone Noble pled guilty to a 

crack cocaine conspiracy and were sentenced to 240 and 252 

months in prison, respectively. Under the terms of their plea 

agreements, Hagler and Noble agreed to waive the right to appeal 

their convictions and sentences, except for claims of 

ineffective assistance or prosecutorial misconduct. In 

addition, Hagler reserved the right to appeal the district 

court’s conclusion that he had a prior felony for sentencing 

purposes.

The Government moves to dismiss the appeals based upon 

the appellate waivers. Counsel for each defendant has filed an 

Anders1

 1 Anders v. California, 386 U.S. 738 (1967).

brief, and each defendant filed a pro se supplemental 

brief. Hagler’s counsel raised the issue of whether Hagler’s 

Fed. R. Crim. P. 11 hearing was properly conducted, and Hagler 

raised pro se challenges to the prior conviction used to enhance 

his minimum sentence. Noble’s counsel challenged the 

voluntariness of the guilty plea, as well as Noble’s sentencing 

enhancements based upon his leadership role and his prior 

conviction. Noble’s pro se brief reargued claims raised by 

counsel and also asserted that his sentence was improperly 

enhanced based on his possession of a firearm.
4

I.

A defendant may, in a valid plea agreement, waive the 

right to appeal under 18 U.S.C. § 3742 (2006). See United 

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). We review 

the validity of an appellate waiver de novo and will uphold a 

waiver of appellate rights if the waiver is valid and the issue 

being appealed is covered by the waiver. See United States v. 

Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver 

is generally considered to be knowing and voluntary if the 

district court specifically questioned the defendant concerning 

the waiver provision during the Rule 11 colloquy and the record 

indicates that the defendant understood the full significance of 

the waiver and was not denied effective assistance of counsel. 

See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). 

However, even a valid appellate waiver does not waive every 

appellate issue. See, e.g., United States v. Attar, 38 F.3d 

727, 732-33 & n.2 (4th Cir. 1994) (holding that waiver of appeal 

does not bar colorable constitutional challenge to the 

voluntariness of a guilty plea).

During the Defendants’ Rule 11 hearings, the district 

court specifically questioned them about the appellate waivers 

and, after doing so, found that they had voluntarily and 

intelligently entered their pleas. The record reveals nothing 

to suggest that the district court’s finding was erroneous, and 
5

neither Defendant raises a claim regarding the appellate waiver.2

Moreover, the Defendants’ appellate waivers of the 

right to appeal their convictions and sentences encompass 

Hagler’s assertions of Rule 11 error,

 

Accordingly, we conclude that the appellate waivers contained in 

the Defendants’ plea agreements are valid and enforceable.

3 as well as Noble’s claims 

of sentencing error. Thus, we grant the Government’s motions to 

dismiss in part. Hagler’s claims regarding his prior conviction 

were specifically excepted from the appellate waiver, and 

Noble’s assertion that his plea was involuntary may not be 

waived. Accordingly, we deny the Government’s motions with 

regard to these claims.

II.

Noble contends that his plea was not constitutionally 

valid because his mental illness prevented the plea from being 

 2 Noble claims that his mental illness rendered his guilty 

plea involuntary and unknowing. As discussed above, a claim 

attacking the voluntariness of the guilty plea cannot be waived; 

as such, this claim will be examined on the merits. However, 

Noble does not specifically allege that his waiver was unknowing 

or involuntary. In any event, even should Noble’s claim be 

expanded to attack the validity of his waiver, it is meritless 

for the reasons discussed below.

3 Rule 11 error is not constitutional error, see McCarthy v. 

United States, 394 U.S. 459, 465 (1969), and Hagler makes no 

allegation that any Rule 11 error affected the voluntariness of 

his plea.
6

voluntary or intelligent. He also asserts that the court should 

have held a competency hearing. The standard for determining 

whether a guilty plea is constitutionally valid is whether the 

plea represents a voluntary and intelligent choice among the 

alternative courses of action open to the defendant. Burket v. 

Angelone, 208 F.3d 172, 190 (4th Cir. 2000). In applying this 

standard, courts look to the totality of the circumstances 

surrounding the plea. Id. “The test for determining competency 

is whether [a defendant] has sufficient present ability to 

consult with his lawyer with a reasonable degree of rational 

understanding . . . and whether he has a rational as well as a

factual understanding of the proceedings against him.” United 

States v. General, 278 F.3d 389, 395-96 (4th Cir. 2002).

At Noble’s plea hearing, he testified that he had 

never been treated for a mental illness, and both his counsel 

and the Government stated that they had no questions about 

Noble’s competency. The court then found Noble competent to 

plead guilty. Throughout the remainder of the plea hearing, 

Noble responded appropriately and predictably and gave no 

indication that he was unable to understand the proceedings. He 

testified that he was satisfied with his attorney and understood 

the charges against him. He also affirmed that the Government’s 

statement of facts was correct.
7

At sentencing, Noble’s counsel stated that he was 

appointed after a psychiatric examination was conducted. After 

speaking with Noble extensively, the psychiatrist determined 

that he was competent to stand trial, and Noble’s attorney 

stated that he did not “have a question about his competency.” 

However, counsel noted that Noble suffered from post traumatic 

stress disorder, major depression, a cognitive disorder, and 

substance abuse issues. He argued that, while Noble was 

competent, he had certain difficulties making judgment calls. 

When Noble allocuted, he spoke rationally and logically about 

his criminal conduct and how his past convictions were impacting 

his sentencing exposure.

On appeal, Noble frivolously argues that the 

psychiatric examination supported his claim that he was 

incompetent, even though the report actually concluded that he 

was competent. Noble also asserts that prison officials have 

told him that he has severe memory problems. We find that it 

was clear from the proceedings that Noble was able to consult 

with his lawyer and had a rational understanding of the 

proceedings against him. While he apparently had certain mental 

issues, there is no evidence that his competency was affected. 

As such, the district court did not err in failing to hold a 

competency hearing and in determining that Noble was competent 

to enter a plea.
8

III.

Hagler asserts that the Government did not serve a 

proper notice of prior conviction under 21 U.S.C. § 851 (2006), 

that the court did not explicitly ask him whether he affirmed or 

denied the prior conviction, and that he was not given an 

adequate opportunity to object to the use of the conviction. 

The record belies Hagler’s contentions. Prior to Hagler’s plea, 

the Government filed a notice of enhancement listing the 

specific prior conviction that would be used to enhance Hagler’s 

sentence. In his plea agreement, he specifically reserved the 

right to challenge the use of his prior conviction, which 

further shows his notice and understanding that the Government 

intended to use the conviction to enhance his sentence. 

Additionally, his presentence report (“PSR”) included 

calculations based upon his prior conviction, and Hagler did not 

object. Hagler was free to challenge his prior conviction at 

sentencing or before, but he did not do so. Even on appeal, 

Hagler does not explain why the use of his prior conviction was 

improper; he argues only that the court did not utilize the 

appropriate procedures.

Regarding the sentencing colloquy, § 851(b) requires 

that, when the Government has filed an § 851 notice, the court 

should ask the Defendant “whether he affirms or denies that he 

was previously convicted as alleged” and inform the Defendant 
9

that “any challenge to a prior conviction which is not made 

before sentence is imposed may not thereafter be raised to 

attack the sentence.” However, literal compliance with the Rule 

is not necessary if it is clear from the circumstances that the 

defendant does not contest the validity of his prior 

convictions. United States v. Steen, 55 F.3d 1022, 1028 (5th 

Cir. 1995).

Here, it is clear that Hagler was aware of the 

Government’s use of the prior conviction and that he withdrew 

any objection to it. At his plea hearing, the disagreement over 

the prior conviction and its ramifications on his sentence were 

explained in detail, and Hagler stated that he understood. 

Then, when he was specifically and personally questioned at 

sentencing, he affirmed that he was withdrawing all objections 

to the PSR. Thus, because Hagler knew about the enhancement and 

made clear his position on it, any error by the district court 

in failing to conduct an explicit colloquy prior to sentencing 

was harmless.

IV.

Finally, Hagler asserts that the Government was 

required to prove his prior conviction beyond a reasonable doubt 

in order to enhance his sentence. However, Hagler’s prior 

conviction, which increased the mandatory minimum but had no 
10

effect on the statutory maximum, need only be determined by a 

preponderance of the evidence. See United States v. Estrada, 

428 F.3d 387, 389-91 (2d Cir. 2005). Moreover, as discussed 

above, Hagler did not dispute the existence or validity of the 

conviction. Further, because Hagler failed to object, the 

district court was not required to hold a hearing or to make 

specific findings of fact before adopting the recommendations in 

the PSR. United States v. Love, 134 F.3d 595, 606 (4th Cir. 

1998).

Pursuant to Anders, we have examined the entire record 

in these cases for reversible error and have found none. 

Accordingly, we dismiss Hagler’s appeal from his conviction and 

Noble’s appeal from his sentence. We affirm Hagler’s sentence 

and Noble’s conviction. We deny Noble’s motions to place his 

appeal in abeyance.

This court requires that counsel inform her client, in 

writing, of his right to petition the Supreme Court of the 

United States for further review. If either of the clients

requests that a petition be filed, but counsel believes that 

such a petition would be frivolous, then counsel may move in 

this court for leave to withdraw from representation. Counsel’s 

motion must state that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal
11

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART