Wednesday, February 12, 2014

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

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.

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