Unambiguous Waiver of Right to Appeal Sentence Despite Parties’ Intentions Otherwise and Judge’s Comments that Defendant Could Object to Enhancement

United States v. Rodriguez-Estrada, No. 12-40629 (5th Cir. Jan. 31, 2014) (Stewart, Jolly, Smith)

The panel holds that Rodriguez’s challenge to the 16-level enhancement to his illegal re-entry sentence was encompassed within his appeal waiver. The plea agreement waived the “right to appeal the sentence imposed or the manner in which it was determined on any grounds set forth in Title 18 U.S.C. § 3742” and the right to contest the conviction or sentence, “including but not limited to Title 28, U.S.C. § 2255.”  During the plea hearing, the magistrate judge incorrectly informed Rodriguez that he retained the right to assert an ineffective assistance of counsel claim and a prosecutorial misconduct claim.  After Rodriguez stated that he wished to reserve his right to object to the characterization of his New Jersey conviction as a crime of violence, the magistrate judge responded that he reserved that right.  At sentencing, the district court overruled his objection and found that the conviction was a crime of violence.  The Government moved for a 2-level downward departure pursuant to the plea agreement, and the district court acknowledged that it chose to impose a 37-month sentence because Rodriguez gave up his right to appeal.

On appeal, Rodriguez did not allege that his appeal waiver was unknowing and involuntary, but he argues that neither he nor the government intended to include the characterization of his prior New Jersey conviction within the purview of the appeal waiver.  However, “courts ‘will not read ambiguity into an agreement in which none readily manifests itself.’”  Absent evidence that the parties intended “non-natural definition, we apply the term’s usual and ordinary meaning.’” 

The panel finds that the “appeal waiver explicitly and unambiguously encompassed ‘the right to appeal the sentence imposed” on any grounds set forth in § 3742.  The magistrate judge’s statement at the plea hearing just permitted Rodriguez to raise the objection during sentencing; “it did not carve out an exception to the appeal waiver.”  Since the panel finds that he waived his right to raise the issue on appeal, the panel does not address his challenge regarding his sentence.

No Prejudice for § 2255 Based on Implausible Testimony that Would Have Appealed But For Counsel’s Deficient Performance

United States v. Bejarano, No. 12-10952 (5th Cir. Mar. 11, 2014) (King, Southwick, Graves) (per curiam)

The panel denied the habeas corpus petitions for ineffective assistance of counsel because, even if counsel did not sufficiently consult with the appellants about filing an appeal and had a duty to do so, the appellants did not show any prejudice.  “The record does not support a finding that there is a ‘reasonable probability that Appellants would have timely appealed but for their counsels’ deficient failure to consult[.]”

The appellants (husband and wife) pled guilty to conspiring to commit money laundering and waived their rights to contest their convictions and sentences except for claims of ineffective assistance of counsel.  They were both sentenced to 42 months’ imprisonment (below the advisory guideline range), but the district court allowed the wife to delay her prison term and return to China to care for her minor children until the husband, Bejarano, completed his prison term. 

To show prejudice, the appellants relied on their expression of interest to counsel in appealing and Bejarano’s testimony that he would have appealed.  Evidence of interest in appealing alone, however, is insufficient to establish that a defendant would have instructed his attorney to file an appeal but for the counsel’s deficient performance.  Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).  The district court found Bejarano’s testimony that he would have appealed to be “self-serving” and “implausible in light of the other evidence,” and the appellants did not argue that the district court’s findings were clearly erroneous.  Given that, and that the appellants waited nearly a year after sentencing to file their petitions, the panel found that they failed to show a reasonable probability they would have appealed but for counsels’ deficiency.

Appeal Waiver of “Sentence” Valid and Applied to Conflict between Oral and Written Pronouncement of Supervised Release Convictions

United States v. Higgins, No. 12-30818 (5th Cir. Jan. 10, 2014) (Stewart, Jolly, Smith)

Higgins pleaded guilty to receipt of child pornography and appealed his sentence of fifteen years of imprisonment and five years of supervised release.  The panel found that he knowingly and voluntarily waived any appeal of his “sentence” (unless above the statutory maximum) and that the waiver applied to conditions of supervised release.  The appeal was dismissed.

At his rearraignment, the district court questioned Higgins about his reading and understanding of the plea agreement, and Higgins responded that there were not any provisions that he did not understand.  The plea agreement acknowledged that Higgins’ prior convictions constituted convictions of “abusive sexual conduct involving a minor or ward,” thereby subjecting him to the minimum sentence of fifteen years under 18 U.S.C. § 2252.  At sentencing, the court sentenced him to supervised release and, in the written (but not oral) pronouncement of conditions, required him to contribute to the cost of drug treatment and to warn other residents with whom he lived that they may be subject to search pursuant to his supervised release conditions.

The panel found that Higgins knowingly and voluntarily waived his appeal and that the waiver applied to his fifteen year sentence since Higgins only reserved the right to appeal any punishment imposed in excess of the statutory maximum, which was forty years with the qualifying prior conviction and twenty years without it.  Higgins also argued that the waiver did not apply to his challenge to his conditions of supervised release since the written pronouncement conflicted with and broadened the oral pronouncement.  The panel concluded that his challenge to the written judgment’s conditions of supervised release is an appeal of his “sentence.”  Since those conditions did not violate the statutory limitations of supervised release conditions, Higgins’ argument falls within the appeal waiver and was waived.

Appeal Waiver in Sentencing Agreement Enforceable

United States v. Walters, No. 12-30571 (Oct. 10, 2013) (Reavley, Elrod, Haynes)

The Fifth Circuit joined its sister circuits in holding that “waivers in sentencing agreements are enforceable just as waivers in plea agreements are enforceable.” 

In this case, the Government filed a sentencing enhancement notice under 21 U.S.C. § 851(a) for Walters’ two prior felony drug convictions.  As a result, Walters was exposed to a mandatory sentence of life imprisonment.  After the jury found Walters guilty of conspiracy and substantive drug offenses as well as unlawful use of communications, Walters filed motions for a new trial and to arrest judgment.  Walters subsequently entered into a sentencing agreement with the Government in which he agreed to withdraw the pending motions and waive his right to appeal the conviction and sentence in exchange for the Government’s dismissal of the § 851(a) sentencing enhancement.  As a result, he faced a mandatory minimum sentence of twenty years in prison to which he was sentenced.

Walters sought to challenge the participation of alternate jurors in jury deliberations on appeal, but the panel held that his appeal waiver was knowing and voluntary even though the district court did not address the waiver in open court at sentencing, noting that the requirement that the district court discuss an appeal waiver before accepting a guilty plea does not apply to a post-verdict agreement such as Walters’.  The panel concluded:

As a result of the sentencing agreement, Walters voluntarily chose the guarantee that he would not face a mandatory life term in prison over the uncertainty of pursuing an appeal.  He may not now avoid the consequences of his agreement after having received the benefit of his bargain.

Ineffective Assistance of Counsel to Not Consult Regarding Appeal Once Client Expressed an Interest in Getting Less Time

United States v. Pham, No. 11-50717 (July 8, 2013) (Wiener, Dennis, Owen)

Pham, a Vietnamese refugee who speaks no English, pleaded guilty pursuant to a plea agreement with an appeal waiver. Counsel explained to Pham that he was likely to receive the mandatory minimum sentence, but Pham believed he would get probation. Pham had no criminal history and only started growing marijuana because his wife was diagnosed with a brain tumor. The Government, however, did not believe that he was being truthful about his conduct and did not move for a § 5K1.1 downward departure. Similarly, the district court concluded he did not qualify for safety valve and sentenced Pham to five years.

Immediately after sentencing, Pham spoke with his counsel and said he "was concerned about getting 60 months and wanted to do something to get less time." Counsel discussed with Pham the possibility of a reduced sentence pursuant to Rule 35 if he cooperates, but counsel did not mention or discuss the possibility of a direct appeal, and no notice of appeal was filed. Pham later filed a § 2255, which the district court denied.

The panel reversed, holding that counsel breached his duty to consult because Pham reasonably demonstrated to counsel that he was interested in appealing since counsel knew Pham had hoped to receive a sentence of probation only and Pham was visibly upset when he told counsel that he wanted to do something to get less time. "We disagree [with the district court] that a lay defendant, particularly one who speaks no English, must incant the magic word ‘appeal’ to trigger counsel’s duty to advise him about one. . . . [C]ounsel’s professional opinion eschewing appeal does not excuse failure to consult altogether."

The lesson: Consult with your client regarding an appeal. The Supreme Court predicted that this duty would exist "in the vast majority of cases." Thus, failure to consult will likely be ineffective assistance of counsel.

Circuit Split: Fourth Circuit Holds Government May Not Condition Motion for Third Acceptance Level on Appeal Waiver

United States v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (Motz, Gregory, Shedd)

As you'll recall, the Fifth Circuit held in United States v. Newson that the Government may refuse to move for the third acceptance level under guideline §3E1.1(b) if a defendant refuses to enter a plea agreement containing an appeal waiver. Agreeing with the Ninth and Tenth Circuits, Newson held that the scope of the Government's discretion in this regard is the same as it is with motions for substantial assistance departures under §5K1.1.

Not so, says the Fourth Circuit in Divens. The text of §3E1.1 and its related commentary differ from that of §5K1.1.  The only discretion the Government has under §3E1.1(b) is in determining whether the defendant gave timely notification of his intention to plead guilty, such that it allowed the Government to allocate its resources efficiently and avoid having to prepare for trial. Conditioning a third-level motion on an appeal waiver is verboten.

The opinion notes that the First and Seventh Circuits share the Fifth Circuit's view, making the split at least 5 to 1.

Court Must Accept or Reject Entire (c)(1)(C) Agreement, May Not Accept Parts and Reject Others; Probably Goes for (c)(1)(A) Agreements, Too

United States v. Self, No. 08-40624 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis." Answer: no. And the reasoning appears to be equally applicable to (c)(1)(A) agreements.

Self was charged with two counts of bank robbery, and two 924(c) carrying counts. He hammered out a (c)(1)(C) agreement with the Government, which entailed a guilty plea to one bank robbery and one 924(c), dismissal of the remaining counts, and a sentence of 171 months (87 months for the bank robbery + 84 months consecutive on the gun count). Additionally, "Self waived the right to appeal 'on all grounds,' but reserved the right to appeal the failure of the district court to impose a sentence in accordance with the terms of the agreement." A magistrate judge took Self's guilty plea, and recommended that the district court accept the agreement. So far, so good.

But then—stop me if you've heard this one before—the probation officer threw a spanner in the works: "The PSR determined that Self was a career offender and recommended a career offender enhancement on [the bank robbery count] that raised the advisory guidelines range to 188 to 235 months. When the mandatory minimum of 84 months for [the gun count] was added, the resulting guidelines range was 272 to 319 months’ imprisonment." At sentencing:

The district court informed Self of his right to withdraw his guilty plea and that if he did not withdraw his plea, he might receive a sentence less favorable than that agreed to in the plea agreement. Self declined to withdraw his guilty plea. The district court reiterated that it would accept all of the plea agreement’s terms except the recommended sentence as to [the bank robbery count]. Self again stated that he did not wish to withdraw his plea. Self allocuted and his defense attorney requested the minimum sentence. The district court then sentenced Self to the minimum sentence of 188 months for [the bank robbery count], taking into account the career offender enhancement, and 84 months for [the gun count], resulting in a sentence of 272 months.

Self appealed his sentence. The Government raised the appeal waiver. The court said:

Because we conclude, infra, that the district court rejected the plea agreement in toto, Self’s waiver of rights in that agreement does not bar his appeal. [cites]. Even assuming Self’s appeal waiver was enforceable, its terms do not apply here. The plea agreement reserved Self’s right to appeal “the failure of the Court, after accepting the agreement, to impose a sentence in accordance with the terms of this agreement.” The 272 month sentence imposed by the district court exceeded the 171 month sentence stipulated to in Self’s plea agreement; the sentence was not “in accordance” with the plea agreement’s terms. There is no obstacle to Self’s appeal.

On to the substance: "Self argue[d] that he is entitled to a sentence reduction because the district court accepted the plea agreement but did not comply with its terms." But because "Self did not raise any objection to the proceedings at the sentencing hearing and he did not assert this argument as a basis for a sentence reduction in either of his post-hearing motions[,]" the court reviewed for plain error.

Before reaching the error prong, the court first had to decide whether the district court had accepted the plea agreement but failed to comply with its sentencing terms (as Self argued), or whether it had rejected the plea agreement (the Government's position). Examining the district court's statements at the sentencing hearing against the background of Rule 11, the court of appeals concluded that the district court rejected the entire plea agreement. The district court, after finding that the probation officer's calculation was correct, said "[I] advise the defendant that I will not follow, cannot follow . . . that portion of the plea agreement, which would have set the sentence . . . [at] 70 to 87 months. . . . I must inform the parties of my rejection of that part of the plea agreement." The court then advised Self, consistent with Rule 11(c)(5), of his right to withdraw his guilty plea, saying "if you don’t withdraw . . . it would be that part of the plea agreement that would be changed, however, the rest of the plea agreement will remain the same." Self opted not to withdraw his plea, and was sentenced to 272 months' imprisonment, rather than the 171-month sentence in the plea agreement. Said the court:

Although we have found no case in our Circuit that explicitly addresses whether a plea agreement may be accepted or rejected on a piecemeal basis, based on the language of Rule 11, we conclude that it cannot. See FED. R. CRIM. P. 11(c)(3)(A) (finding that “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report” (emphasis added)); [a couple of cases]. Rule 11 speaks in terms of a “plea agreement” and “does not distinguish between ‘sentence bargains’” and “so-called ‘charge bargains,’ in which a criminal defendant typically pleads guilty to a specific charge in exchange for the prosecution agreeing to drop other charges.” At least one other court has concluded that the “rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in . . . Rule 11(c)(5).” We agree. By rejecting the agreed-to sentence of 87 months on Count III, the district court constructively rejected the plea agreement in toto. Further indicia that the district court rejected the plea agreement is that it admonished Self as required by Rule 11(c)(5), which sets forth the warnings that must be delivered to a defendant when the court rejects a plea agreement.

(most cites omitted). Lets pause for a moment to talk about a couple of things before we move on. First, the court explained how to avoid this mess in the first place: "We note that the district court unnecessarily muddied the waters by making statements to the effect that it was rejecting 'that portion of the plea agreement' specifying an 87-month sentence. The better practice is to make clear that the entire plea agreement is being rejected and then give the Rule 11 warnings." Second, remember that Rule 11(c)(3)(A) covers not only (c)(1)(C) agreements, but (c)(1)(A)'s, as well. Plus, when you think about it, this case actually involves a combination (c)(1)(A)/(c)(1)(C) agreement. Thus, the court's reasoning should apply equally to (c)(1)(A)'s. How might this come up in the context of a (c)(1)(A)-only plea? I'm not entirely sure, but keep the case in mind if you have one those that starts going south.

Okay, back to plain error. Although the district court had discretion to reject the agreement, it "was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable."

In this respect, the colloquy between Self and the district court is problematic. Although the district court followed the dictates of Rule 11(c)(5) in advising Self that he could withdraw his plea and might be sentenced more harshly, the district court at the same time stated that the plea agreement would stand in all respects except for the sentence. Thus, it is unclear whether Self understood that if he withdrew his plea of guilty, he could either proceed to trial or try to negotiate a new plea agreement, or if he persisted in his guilty plea, he would be sentenced without any of the constraints or benefits of the plea agreement, including the government’s agreement to drop two of the counts. Instead, it appeared that the district court was offering the same terms as the plea agreement, except that the sentence would be changed.

The error affected Self's substantial rights. Instead of getting the 171-month sentence he bargained for, "Self was subjected to an altogether different bargain—one of the district court’s making. Had the district court rejected Self’s plea agreement in toto and sent the parties back to the drawing board, we cannot say what agreement they might have struck."

Which brings us to the last prong: "Failure to properly inform Self that the entire plea agreement was being rejected, compounded by the district court’s error in reimposing all of the terms of the plea agreement on Self, except for the agreed-to sentence under Rule 11(c)(1)(C), requires reversal because such error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Hence, vacation of Self's conviction and remand for proceedings before a different judge.

By the way, notice anything missing from the court's analysis? Perhaps a discussion of whether the error was "plain?" Don't worry, it's there. It just isn't identified as such. The court's discussion of the fairness, etc. prong notes that "[s]trict compliance with Rule 11 is generally required," and that, "[f]or the same reasons that the district court may not involve itself in plea negotiations, it may not reject a plea agreement and then, nonetheless, impose it on the parties with modifications that it chooses." Plainness is also implicit in the court's explanation of why there was error, so that part of plain error review is covered.

Court Declines to Decide Whether General Appeal Waiver Bars Review of Restitution Order

United States v. Smith, No. 07-60385 (5th Cir. May 16, 2008) (King, DeMoss, Benavides)

Smith pleaded guilty pursuant to a plea agreement providing that she "expressly waives her rights to appeal the conviction or sentence imposed in this case, and the manner in which the sentence was imposed, on any ground whatsoever." She nonetheless appealed, arguing that there was insufficient evidence to support the district court's restitution order.

The court began by noting that, "[i]n two unpublished cases, we have held that an appeal waiver barred review of a restitution order, but both of those cases involved plea agreements that explicitly stated that the defendant agreed to pay restitution in an amount determined by the district court." Unlike those cases, Smith's plea agreement did not address restitution. The district court also failed to tell Smith that any restitution order would be convered by the appeal waiver, although the matter came up briefly at the plea colloquy.

Nevertheless, the court "decline[d] to address the issue of whether a general appeal waiver bars review of a restitution order when the plea agreement does not discuss restitution"---although it cited several circuits that have held such a waiver does not bar the appeal---because it found that there was adequate evidence to support the restitution order: the PSR's loss amount calculation was based on an interview with an employee of the victim, and although Smith offered a different calculation, she offered no evidence to explain her calculation or to rebut the PSR's calculation. Thus, the court affirmed the restitution order, citing the familiar---and questionable---precedents holding that "[t]he district court may adopt the facts contained in a presentence report without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable," and that "[t]he defendant bears the burden of showing that the information in the PSR relied on by the district court is materially untrue."

Defendant's Refusal to Enter Plea Agreement Containing Appeal Waiver Justifies Government's Refusal to Move for Third Acceptance Level

United States v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (Higginbotham, Davis, Smith)

Newson pleaded guilty, without a plea agreement, to possession of marijuana with intent to distribute. The Government refused to move for the third acceptance level, candidly admitting that its only reason for doing so was because Newson declined to enter a plea agreement containing an appeal waiver. Newson objected and asked alternatively for a one-level departure. The district court overruled the objection, concluded that a departure was not authorized, and sentenced Newsom to 41 months' imprisonment---the low end of the Guidelines range. The court added that "if the third-level decrease had been available (thus changing the guideline range to 37 to 46 months), it would have imposed a 37-month sentence."

Newson appealed his sentence, challenging the Government's refusal to move for the third level on a couple of grounds. First, he argued that the PROTECT Act's amendment to the acceptance guideline, which made the third point conditional on a Government motion, "violates principles of separation of powers by shifting judicial power to the executive branch." The court rejected that argument, without much discussion. It followed the lead of an unpublished Fifth Circuit opinion which apparently held that since Booker "reaffirmed" Mistretta, "Booker forecloses the claim that §3E1.1(b) results in an unconsitutional violation of the separation-of-powers doctrine." According to the court, "[t]wo other circuits are in accord." (citing unpublished opinions).

Second, Newson argued that the Government's refusal to move for the third acceptance level "was irrational and punitive and not based on a legitimate governmental purpose." He also "contend[ed] that § 3E1.1(b)’s purpose is to prevent a waste of prosecutorial and judicial resources at the trial-court level and that the Guideline contains no nexus between post-judgment proceedings and a defendant’s timely pretrial action." The Government countered that 1) "§ 3E1.1(b) 'can reasonably be interpreted' to encompass not only the expenditure of the Government’s time and effort at the prejudgment stage but also in appellate or collateral-review proceedings," and that "conserving its resources in post-judgment proceedings serves a legitimate governmental interest[;]" and 2) "Newson’s desire to preserve his post-judgment rights shows that he has not 'accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.'" (quoting guideline commentary).

The court first held that the third level cannot be awarded absent a Government motion. It then agreed with the Ninth and Tenth Circuits that the Government has the same discretion to to file a third-level motion as it does with a §5K1.1 substantial assistance motion. The court also agreed with the Tenth Circuit's conclusion that “a court can review the government’s refusal to file a Section 3E1.1(b) motion and grant a remedy if it finds the refusal was (1) animated by an unconstitutional motive, or (2) not rationally related to a legitimate government end.” Applying that standard here, the court asserted, with little supporting analysis, that "[t]he defendant’s refusal to waive his right to appeal is a proper basis for the Government to decline to make such a motion, as it is rationally related to the purpose of the rule and is not based on an unconstitutional motive."

Newsome also argued that his sentence was substantively unreasonable due to the district court's refusal to impose a below-Guidelines sentence equivalent to what the low end of the range would have been had the Government moved for the third level. The court held that Newsom failed to overcome the presumption of reasonableness because the district court was aware of its authority to depart or vary and saw no reason for doing so.

This decision is wrong, for a couple of reasons. First, the court's conclusion that the Government has discretion whether to move for the third level, just as it does under §5K1.1, is incorrect. That interpretation is not supported by the text of §3E1.1, and is inconsistent with the overall structure of §3E1.1. Recall that prior to the PROTECT Act, the third level was not discretionary; instead, it kicked in automatically once the court made two factual determinations: 1) that the defendant had accepted responsibility under subsection (a), thus entitling him to the first two levels, and 2) that the acceptance was sufficiently timely to allow the court and the Government to conserve resources. The court could not deny the third level on the ground that the defendant had sufficiently accepted responsibility for only two levels worth of relief, rather than three levels.

The post-PROTECT Act version of §3E1.1 is structured the same way. The only difference is in the identity of the fact-finder for fact #2; instead of the Court, it's the Government. There's nothing in the text of §3E1.1 or its accompanying commentary that suggests the PROTECT Act also changed the nature of the subsection (b) determination from a factual finding to a discretionary judgment. Thus, the third-level motion should be seen as more of a certification that the Government is required to make once the factual predicate exists. The guideline's unchanged structure also suggests that the Government's cannot withhold certification of the third level if it doesn't feel the defendant has sufficiently accepted responsbility, just as, prior to the PROTECT Act, a court could not reconsider the acceptance question anew when it came time to determine eligibility for the third level.

Second, even if the third-level motion is discretionary, it does not follow that a defendant's refusal to waive appeal is a legitimate basis for the Government to refuse to file the motion. The guideline and the commentary repeatedly refer to expenditure of resourses for "trial" preparation, not any and all resources that will be expended until the defendant ultimately completes his sentence and any term of supervised release. Although the background commentary does refer to a "defendant [who] has accepted responsbility in a way that ensures the certainty of his just punishment in a timely manner," a defendant's reservation of his right to appeal isn't inconsistent with that goal, especially when most appeals in this situation will involve sentencing error that won't manifest itself until after the defendant has pleaded guilty.

Let's hope Newson isn't the last word on this.