Monday, April 21, 2014

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

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.

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