United States v. Guillen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2008 Decided April 14, 2009

No. 07-3077

UNITED STATES OF AMERICA,

APPELLEE

v.

MARIBEL A. GUILLEN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 07cr00100-01)

Tony Axam Jr., Assistant Federal Public Defender,

argued the cause for appellant. With him on the briefs was

A.J. Kramer, Federal Public Defender.

Stratton C. Strand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese III, Florence

Pan, and Ronald Wesley Sharpe, Assistant U.S. Attorneys.

Before: GINSBURG, TATEL and BROWN, Circuit Judges.

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Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: As part of her agreement to

plead guilty to one count of wire fraud, Maribel Guillen

waived her right to appeal her sentence if it was within the

range indicated by the United States Sentencing Guidelines.

Guillen received such a sentence but appeals nonetheless,

contending the waiver is not enforceable. We join the eleven

other circuits with jurisdiction over criminal appeals in

holding such waivers are generally enforceable.

I. Background

Guillen entered into an agreement with the Government

whereby she would plead guilty to one count of wire fraud,

which she committed as part of a scheme to embezzle funds

from her former employer. The agreement also provided she

[W]aives the right to appeal her sentence or the

manner in which it was to be determined

pursuant to 18 U.S.C. § 3742, except to the

extent that (a) the Court sentences Ms. Guillen

to a period of imprisonment longer than the

statutory maximum or (b) the Court departs

upward from the applicable Sentencing

Guideline range.

Guillen duly pled guilty. During the plea colloquy, the

court told Guillen “you would always have the right to take

an appeal if you thought my sentence was illegal.” The court

also explained the method it would use to sentence Guillen,

which “start[s] with a presumption that [a sentence within the

Guideline range] is reasonable.” Later in the hearing, the

court said:

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I do want to talk about [the waiver provision].

As I understand this ... and this paragraph is a

little bit different than the usual one, [Guillen]

is giving up her right to appeal any sentence

she receives unless I sentence her to a period

longer than 20 years or unless I depart upwards

from the guideline range.

Then, in light of Guillen’s waiver, the court corrected its prior

statement that Guillen “would always have the right” to

appeal an illegal sentence. Guillen said she understood the

waiver provision and the court accepted her plea.

The court later determined the applicable Guideline range

was 15 to 21 months imprisonment. At a sentencing hearing

the court considered Guillen’s arguments that she ought to

receive a sentence below the Guideline range, but concluded a

sentence within “the guideline range is reasonable and meets

the requirements of 18 U.S.C. § 3553.” The court thereupon

sentenced Guillen to the minimum Guideline sentence of 15

months imprisonment and to two years of supervised release

and ordered her to pay restitution. Guillen appealed the

sentence.

II. Analysis

Guillen first argues the district court erred insofar as it

believed a sentence within the Guideline range was

presumptively reasonable. See Rita v. United States, 127 S.

Ct. 2456, 2465 (2007) (“[T]he sentencing court does not

enjoy the benefit of a legal presumption that the Guidelines

sentence should apply”). She further contends the district

court imposed a sentence greater than necessary to

accomplish the purposes of sentencing, contrary to 18 U.S.C.

4

§ 3553(a) (“The court shall impose a sentence sufficient, but

not greater than necessary, to comply with the purposes” of

sentencing). We do not consider these arguments because, as

explained below, we agree with the Government that Guillen

validly waived her right to appeal a sentence within the

Guideline range.

A. General Validity of Pre-sentence Waivers

As the First Circuit has observed, “The basic argument

against presentence waivers of appellate rights is that such

waivers are anticipatory.” United States v. Teeter, 257 F.3d

14, 21 (2001). Accordingly, Guillen argues a defendant

cannot knowingly waive his right to appeal a sentence that

has not yet been imposed. All eleven other courts of appeals

with criminal jurisdiction (including the First) have rejected

this argument and held such waivers are presumptively valid.∗

This court has enforced a waiver of the right to appeal a yet-

to-be-imposed sentence on two occasions, see United States v.

West, 392 F.3d 450, 458-61 (2004); In re Sealed Case, 283

F.3d 349, 355 (2002), but we have not yet determined

“whether such waivers are valid as a general matter.” West,

392 F.3d at 460-61.

∗

See Teeter, 257 F.3d at 21; United States v. Monzon, 359 F.3d

110, 116-17 (2d Cir. 2004); United States v. Khattak, 273 F.3d 557,

562 (3d Cir. 2001); United States v. Brown, 232 F.3d 399, 403 (4th

Cir. 2000); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.

1992); United States v. Fleming, 239 F.3d 761, 763-64, (6th Cir.

2001); United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001);

United States v. Michelsen, 141 F.3d 867, 871 (8th Cir. 1998);

United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000);

United States v. Hahn, 359 F.3d 1315, 1325-26 (10th Cir. 2004) (en

banc) (per curiam); United States v. Howle, 166 F.3d 1166, 1168

(11th Cir. 1999).

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We now agree with our sister circuits that such waivers

generally may be enforced. A defendant may waive his right

to appeal his sentence as long as his decision is knowing,

intelligent, and voluntary. An anticipatory waiver — that is,

one made before the defendant knows what the sentence will

be — is nonetheless a knowing waiver if the defendant is

aware of and understands the risks involved in his decision.

Cf. Brady v. United States, 397 U.S. 742, 748-49 (1970)

(waiver of right to trial by jury); United States v.

Cunningham, 145 F.3d 1385, 1391 (D.C. Cir. 1998) (waiver

of right to counsel). If “the record [shows] that [the

defendant] knows what he is doing and his choice is made

with eyes open,” Cunningham, 145 F.3d at 1391 (internal

quotation marks omitted), then the Court will enforce an

anticipatory waiver.

In addition, we note the right to appeal a sentence is a

creature of statute. See 18 U.S.C. § 3742. It would make

little sense to hold a criminal defendant, who may waive basic

rights guaranteed by the Constitution, may not waive a right

created by statute and hence revocable at will by the

Congress. See Judiciary Act of 1891, 26 Stat. 826, 828. The

defendant cannot be certain of the consequences of waiving

his constitutional right to trial by jury or to be represented by

counsel any more than he can be certain of the consequences

of waiving his right to appeal his sentence. In each situation,

he must evaluate the possibilities open to him and their

associated probabilities and, with the help of counsel, choose

the most favorable alternative. A defendant who waives trial

by pleading guilty, for example, believes the sentence he is

likely to receive as a result (with credit for accepting

responsibility) is more attractive than facing the range of

possibilities — from acquittal on all counts to conviction and

the maximum sentence on all counts — discounted by their

corresponding probabilities. Pleading guilty allows the

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defendant to narrow the range of possible penalties. The

calculation a defendant makes in waiving his right to appeal

his yet-to-be-imposed sentence is fundamentally similar and

ought not to be treated differently.

Allowing a defendant to waive the right to appeal his

sentence also gives him an additional bargaining chip to use

in negotiating a plea agreement with the Government. See

Teeter, 257 F.3d at 22. For example, the prosecutor might be

willing to dismiss a count in exchange for the defendant’s

waiver of his right to appeal his sentence. Indeed, in certain

circumstances an agreement may not be possible if the

defendant may not waive his right to appeal. Allowing the

defendant to waive this right therefore improves the

defendant’s bargaining position and increases the probability

he will reach a satisfactory plea agreement with the

Government.

B. When a Pre-sentence Waiver is not Enforceable

By waiving the right to appeal his sentence, the

defendant does not agree to accept any defect or error that

may be thrust upon him by either an ineffective attorney or an

errant sentencing court. Rather, the defendant waives his

right to contest only a sentence within the statutory range and

imposed under fair procedures; his waiver relieves neither his

attorney nor the district court of their obligations to satisfy

applicable constitutional requirements. Drawing upon the

experience of sister circuits, therefore, we mention some

circumstances that may lead a reviewing court not to enforce

a pre-sentence waiver. See, e.g., United States v. Hahn, 359

F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam);

Teeter, 257 F.3d at 25 n.9-n.10; United States v. Brown, 232

F.3d 399, 403 (4th Cir. 2000); United States v. Michelson,

141 F.3d 867, 872 n.3 (8th Cir. 1998).

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Most obvious, a waiver should not be enforced insofar as

the defendant makes a colorable claim he received ineffective

assistance of counsel in agreeing to the waiver. See, e.g.,

Hahn, 359 F.3d at 1327; Teeter, 257 F.3d at 25 n.9. If such a

claim is upheld, it follows that, because the defendant’s

attorney failed to ensure the defendant understood the

consequences of his waiver, the waiver was not knowing,

intelligent, and voluntary. If, however “a defendant’s

complaints of his counsel’s inadequacy plainly lack merit, a

court cannot allow itself to be manipulated” into voiding a

bargained-for waiver of the right to appeal. Cunningham, 145

F.3d at 1392.

Nor should a waiver be enforced if the sentencing court’s

failure in some material way to follow a prescribed

sentencing procedure results in a miscarriage of justice. If,

for example, the district court utterly fails to advert to the

factors in 18 U.S.C. § 3553(a), then this court may disregard

the waiver and consider the defendant’s argument that the

district court imposed an unlawful sentence. In the same

vein, a defendant does not waive his right to appeal a sentence

that is unlawful because it exceeds the statutory maximum.

See, e.g., Hahn, 359 F.3d at 1327; Teeter, 257 F.3d at 25

n.10; Michelson, 141 F.3d at 872 n.3. Finally, we note a

waiver does not shield from review a sentence colorably

alleged to rest upon a constitutionally impermissible factor,

such as the defendant’s race or religion. See, e.g., Hahn, 359

F.3d at 1327; Teeter, 257 F.3d at 25 n.9; Brown, 232 F.3d at

403; Michelson, 141 F.3d at 872 n.3.

C. Guillen’s Waiver is Valid

We turn now to Guillen’s claim her waiver of the right to

appeal her sentence was not knowing, intelligent, and

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voluntary. As with the validity of a defendant’s waiver of the

right to counsel, our review is de novo. See Cunningham, 145

F.3d at 1392.

In this case, the transcript of the plea hearing

demonstrates that Guillen’s waiver was knowing, intelligent,

and voluntary. Guillen argues her waiver was not made

knowingly because the district court initially said she “would

always have the right to take an appeal if [she] thought [the]

sentence was illegal.” As the Government points out,

however, the court later corrected this statement in light of

Guillen’s waiver. The court explained to Guillen she was

waiving her right to appeal her sentence unless it was above

the statutory maximum or was an upward departure from the

Guideline range. Guillen then said she understood that,

which leaves us with no reason to doubt Guillen’s waiver was

knowing, intelligent, and voluntary.

Guillen makes no argument that the district court failed

to follow a prescribed sentencing procedure resulting in a

miscarriage of justice. Instead, Guillen makes several

arguments that have little relevance to our analysis.

First, Guillen argues the district court voided the waiver

agreement when it told her, at the end of the sentencing

hearing, “You do have the right to take an appeal from this

sentence. If you want to do so you should tell [your attorney],

and you have to let him know within ten days.” This

statement does not undermine the waiver agreement because

it is correct; Guillen was entitled to appeal her sentence if it

was above the statutory maximum or departed upward from

the Guideline range. See United States v. Atterberry, 144

F.3d 1299, 1301 (10th Cir. 1998) (holding similar comment

about right to appeal sentence did not void waiver

agreement). More important, a statement made at the

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sentencing hearing could not have informed (or misinformed)

Guillen’s decision to waive her right to appeal because that

decision was made at the earlier plea hearing. See id.

Next, Guillen argues she is entitled to appeal because she

waived her right to appeal only under 18 U.S.C. § 3742 and

not under 28 U.S.C. § 1291. Unlike § 3742, however, § 1291

does not give a criminal defendant a right to appeal. Rather, §

1291 gives the circuit courts subject matter jurisdiction over

final orders of the district courts, including sentencing orders,

see Hahn, 359 F.3d at 1322.

Finally, Guillen argues her waiver should not be enforced

because the district court impermissibly presumed any

sentence within the Guideline range was reasonable. Here

Guillen points to the district court’s statement at the plea

hearing that it “starts with a presumption” that a sentence

within the Guideline range is reasonable. But see Rita, 127 S.

Ct. at 2465 (“sentencing court does not enjoy the benefit of a

legal presumption that the Guidelines sentence should

apply”). Guillen’s argument that the court impermissibly

applied a presumption of reasonableness to a sentence within

the Guideline range is of the kind a reviewing court need not

consider when the defendant has waived his right to appeal a

sentence or the manner in which it was determined. As stated

above, we will disregard a waiver agreement on account of a

district court’s procedural error only if the error results in a

miscarriage of justice; that the district court presumed any

sentence within the Guideline range would be reasonable

deprived Guillen of no element essential to a lawful sentence.

Guillen points to three decisions holding it impermissible for

a district court to presume a sentence within the Guideline

range is reasonable. See United States v. Ross, 501 F.3d 851,

853 (7th Cir. 2007); United States v. Conlan, 500 F.3d 1167,

1169-70 (10th Cir. 2007); United States v. Wilms, 495 F.3d

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277, 281-82 (6th Cir. 2007). Notably, however, none of these

cases involved a defendant who had waived his right to

appeal his sentence.

From our review of the transcript of Guillen’s sentencing

hearing, it is apparent the district court identified the correct

Guideline range, considered the factors in § 3553(a), and

chose a sentence within the Guideline range. Pursuant to the

terms of the waiver agreement and the concomitantly limited

scope of our review, we do not consider whether the district

court erred by applying a presumption of reasonableness to a

sentence within that range. Moreover, because we hold

Guillen’s waiver was knowing, intelligent, and voluntary, we

do not consider her arguments that the sentence was

substantively unreasonable because the district court failed to

give sufficient weight to her poor health, her personal history,

and her cooperation with authorities.

III. Conclusion

Guillen waived her right to appeal any sentence below

the statutory maximum and within the Guideline range. She

appealed anyway but advances no argument that would cause

us to disregard her waiver: She makes no claim she received

ineffective assistance of counsel and she has not shown that

the district court worked a miscarriage of justice by failing to

follow an essential procedure or relied upon a constitutionally

impermissible factor in determining her sentence. We

therefore enforce the waiver agreement and hold she waived

her right to appeal her sentence. Her appeal is, accordingly,

Dismissed.