United States v. Richard Higgins

Case: 12-30818 Document: 00512496730 Page: 1 Date Filed: 01/10/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 12-30818 January 10, 2014

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

RICHARD A. HIGGINS,

Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, JOLLY and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Richard Higgins pleaded guilty of receipt of child pornography and

appeals his sentence. Appeal has been waived, so the appeal is dismissed.

I.

In 1983, Higgins was convicted of crimes against nature and carnal

knowledge of a juvenile under Louisiana law for engaging in fellatio and sexual

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No. 12-30818

intercourse with his thirteen-year-old step-niece. In 2009, federal agents dis-

covered, on Higgins’s computer, approximately 10,000 images and 2,500 videos

depicting the sexual exploitation of children ranging in age from infants to fif-

teen years. Higgins pleaded guilty to one count of receipt of materials involving

sexual exploitation of minors and was sentenced to fifteen years of impris-

onment and five years of supervised release (“SR”).

At his rearraignment, Higgins entered into a plea agreement that

included a general waiver of the right to appeal his sentence, reserving only

the right to appeal “any punishment imposed in excess of the statutory maxi-

mum.” 1 Although the district court did not question Higgins specifically

regarding the waiver, it asked him about his reading and understanding of the

plea agreement; it directed the prosecutor to show Higgins the agreement once

again, to which Higgins responded that he had read it. The court then asked

whether there were any provisions that Higgins did not understand, to which

Higgins responded “No.” 2

1 “Except as otherwise provided in this paragraph, the defendant hereby expressly

waives the right to appeal his sentence on any ground, including but not limited to any appeal

right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defen-

dant further agrees not to contest his sentence in any post-conviction proceeding, including

but not limited to a proceeding under Title 28, United States Code, Section 2255. The defen-

dant, however, reserves the right to appeal any punishment imposed in excess of the statu-

tory minimum.”

2 “The Court: Mr. [Prosecutor], would you show Mr. Higgins the plea

agreement letter. I just need you to take a look at this, Mr. Hig-

ins, and let me know if you have seen it before.

The Defendant: Yeah, I saw it.

The Court: Is there anything in that document you don’t understand?

The Defendant: No.

The Court: Does it reflect the agreement you have with the government with

respect to these charges?

The Defendant: Yes.

2

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Additionally, the plea agreement acknowledged Higgins’s Louisiana con-

victions and that they constitute convictions of “abusive sexual conduct involv-

ing a minor or ward” for purposes of 18 U.S.C. § 2252. As a result, the mini-

mum sentence would be fifteen years. The district court specifically questioned

Higgins regarding that section of the agreement and its consequences on sen-

tencing. 3 In response, Higgins repeatedly asserted that he did not want out of

jail and wished to sign the plea agreement. 4

At the oral pronouncement, the court added several special conditions of

The Court: Is it your signature on the last page?

The Defendant: Yes.”

3 “The Court: Also, the government would have to prove that you were previ-

ously convicted of a crime relating to abusive sexual conduct

involving a minor in order for you to receive the enhancement.

Do you understand that?

The Defendant: Yes, I guess.

The Court: Do you want to talk to Mr. Montgomery about that for a minute?

(Discussion between the defendant and his counsel off the record.)

The Defendant: Yes, Your Honor.

The Court: Do you understand that there is––because of the previous con-

viction, there is an enhancement of the sentence. That’s why we

had talked about the mandatory minimum that we talked about.

I just need to know if you understand that? [sic]

The Defendant: I understand it.”

4 “The Defendant: Your Honor, I don’t want any supervised release. I want to go to

jail until I die.

The Court: Okay.

The Defendant: You know, I have talked––that’s why I am here pleading guilty.

...

The Defendant: I don’t want out of jail. If you gave me five years, you know,

hypothetically, you know, what then? I’m 71 years old, I have

got to try to figure out what I’m going to do the rest of my life? I

don’t want out. So if you give me 100 years or life, I will take it,

you know. That’s the only reason I am signing all these papers,

I am guilty, I did what I said that I did and I don’t want out.”

3

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SR, including “the drug abuse treatment and/or testing condition” and “the

search and seizure condition.” Although the court did not discuss those condi-

tions in detail during oral sentencing, the written pronouncement included

additional language requiring Higgins (1) to contribute to the cost of the drug

testing 5 and (2) to warn any other residents with whom he lived that they may

be subject to search pursuant to his conditions of SR. 6

On appeal, Higgins argues that the district court erred in finding that

his prior convictions constituted “abusive sexual relations with a minor or

ward” under § 2252, raising the minimum statutory imprisonment from five to

fifteen years. Higgins also maintains that the written pronouncement conflicts

with the oral pronouncement by impermissively broadening the conditions of

SR. Additionally, Higgins contends that the appeal waiver is invalid because

it was not made knowingly or voluntarily and, alternatively, that it does not

apply to his argument regarding the conflict in sentences because that appeal

does not concern his “sentence.”

II.

An appeal waiver bars an appeal if the waiver (1) was knowing and vol-

untary and (2) applies to the circumstances at hand, based on the plain lan-

guage of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir.

5“The defendant shall participate in a program of testing and/or treatment for drug

abuse, as directed by the probation officer, until such time as the defendant is released from

the program by the probation officer. The defendant shall contribute to the cost of such treat-

ment to the extent that the defendant is deemed capable by the probation officer.” (emphasis

added).

6 “The defendant shall submit his person, residence, office or vehicle to a search, con-

ducted by a United States Probation Officer at a reasonable time and in a reasonable manner,

based upon reasonable suspicion of contraband or evidence of a violation of a condition of

release; the defendant shall warn any other residents that the premises may be subject to

searches pursuant to this condition.” (emphasis added).

4

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2005). Under that test, Higgins has waived appeal.

A.

For a waiver of appeal to be knowing and voluntary, a defendant must

know that he had a right to appeal his sentence, that he was giving up that

right, and the consequences of giving it up. 7 We will, however, enforce a waiver

on appeal regardless of whether the district court addressed it directly where

the record indicates the defendant has read and understood his plea agreement

and has raised no questions about the waiver. 8 The district court specifically

asked Higgins whether he had read and understood the plea agreement and

whether the signature was his. Higgins answered affirmatively and asked no

questions. Because Higgins knowingly and voluntarily waived his right to

appeal, he is bound by the obligations of the plea agreement.

7See United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994); United States v. Baty,

980 F.2d 977, 979 (5th Cir. 1992).

8 See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005) (“Because McKin-

ney indicated that he had read and understood the plea agreement, which includes an expli-

cit, unambiguous waiver of appeal, the waiver was both knowing and voluntary.”); Bond, 414

F.3d at 544 (“Because [the defendant] indicated that he read and understood the agreement,

which includes an explicit, unambiguous waiver of appeal, the waiver was both knowing and

voluntary.”); Portillo, 18 F.3d at 292–93 (“We hold [ ] that when the record of the Rule 11

hearing clearly indicates that a defendant has read and understands his plea agreement, and

that he raised no question regarding a waiver-of-appeal provision, the defendant will be held

to the bargain to which he agreed, regardless of whether the court specifically admonished

him concerning the waiver of appeal.”); United States v. Wheaton, 465 F. App’x 321, 323 (5th

Cir.) (per curiam) (“Wheaten’s response . . . indicates that he had read the plea agreement.

At no time did Wheaten indicate . . . that he did not understand any of the terms set forth in

the agreement. Moreover, Wheaten signed the agreement in which he attested that he had

read it and understood its terms.”), cert. denied, 133 S. Ct. 298 (2012); cf. Baty, 980 F.2d at

978–79 (holding that inadequate explanation of waiver-of-appeal provision specifically ques-

tioned by defendant rendered the waiver invalid); United States v. Robinson, 187 F.3d 516,

518 (5th Cir. 1999) (“It is clear from the plea colloquy that the district court did not ask

Robinson whether he had read the written plea agreement and understood it.”).

5

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B.

First, we must address whether the plain language of the waiver applies

to Higgins’s appeal regarding the district court’s ruling that a fifteen-year

mandatory-minimum term of imprisonment applied based on Higgins’s prior

convictions. In his appeal waiver, Higgins reserved only “the right to appeal

any punishment imposed in excess of the statutory maximum.” The statutory

maximum under the plea agreement—in which Higgins acknowledged a prior

conviction under Louisiana law relating to the “abusive sexual conduct involve-

ing a minor or ward”—was forty years; the maximum in the absence of such a

qualifying conviction was twenty years. 18 U.S.C. § 2252(b)(1). Because Hig-

gins’s fifteen-year term is less than both maximum sentences, his claim regard-

ing the fifteen-year mandatory minimum falls within the waiver provision and

is waived on appeal.

C.

Next, we address whether the plain language of the waiver applies to

Higgins’s appeal regarding the conditions of SR. 9 Higgins argues that the

waiver does not apply to his contention that the written judgment conflicts

with the oral pronouncement of sentence because the appeal waiver extends

only to Higgins’s actual “sentence” 10 and that only the oral pronouncement of

sentence should be considered the “sentence” for purposes of the appeal waiver.

9Although Higgins argues that the government has failed to object to his appeal

regarding the conditions of SR on appeal and that, as a result, they have waived the appeal

waiver, United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006), we do not agree. The gov-

ernment has adequately invoked the waiver on appeal.

10 “[T]he defendant hereby expressly waives the right to appeal his sentence on any

ground, including but not limited to any appeal right conferred by Title 18, United States

Code, Section 3742 on the defendant, and the defendant further agrees not to contest his

sentence in any post-conviction proceeding, including but not limited to a proceeding under

Title 28, United States Code, Section 2255.” (emphasis added).

6

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We disagree: The waiver applies.

Although the waiver provision does not explicitly include the terms of

SR, this court—as well as Congress—has deemed SR to be a part of the sen-

tence. 11 In fact, 18 U.S.C. § 3742—under which Higgins claims appellate

jurisdiction—also includes conditions of SR as a part of the sentence. 12 As a

result, the term “sentence” unambiguously includes SR and its conditions as a

matter of law.

Higgins further contends, however, that even if conditions of SR were

included within the “sentence,” only those conditions in the oral pronounce-

ment can be considered his “sentence” for purposes of waiver. Therefore, his

argument continues, any appeal regarding potential discrepancies in the writ-

ten pronouncement is not an appeal of the sentence but is instead an attempt

to bring the judgment in line with the actual, oral sentence. As his lone sup-

port, Higgins quotes United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir.

1991): “[W]here there is any variation between the oral and written pro-

nouncements of sentence, the oral sentence prevails.”

This argument is not convincing because Shaw concerned the merits of

an appeal regarding conflict between oral and written pronouncements of sen-

tence. Id. Though it is true that the oral pronouncement prevails where a

conflict is found, this settled law regarding the merits of the appeal does not

11See United States v. Benbrook, 119 F.3d 338, 341 n.10 (5th Cir. 1997); 18 U.S.C.

§ 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a

misdemeanor, may include as a part of the sentence a requirement that the defendant be

placed on a term of [SR] after imprisonment.” (emphasis added)).

12“A defendant may file a notice of appeal in the district court for review of an other-

wise final sentence if the sentence . . . is greater than the sentence specified in the applicable

guideline range to the extent that the sentence includes a greater fine or term of imprison-

ment, probation, or [SR] than the maximum established in the guideline range, or includes a

more limiting condition of probation or [SR] under section 3563(b)(6) or (b)(11) than the max-

imum established in the guideline range.” 18 U.S.C. § 3742(a) (emphasis added).

7

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speak to whether a conflict between the two sentences constitutes an appeal of

the sentence for purposes of waiver. 13 In other words, the fact that the oral

pronouncement prevails when there is variation does not mean that the writ-

ten pronouncement is not also the “sentence” for purposes of appeal.

Additionally, the nature of the appeal for conflict between the two sen-

tences suggests that such an appeal is an appeal of the sentence. The very

concern that there should be no conflict between the two sentences is largely

based on problems endemic to a conflicting sentence and the constitutional

issues inherent to a materially different second sentence for which the defen-

dant was not present. 14 Although when in conflict one necessarily must control

—and we have decided that it must be the oral sentence—that does not change

the fact that they are both considered the sentence and that they may differ in

content if they do not conflict but one merely addresses ambiguities in the

other. 15 Therefore, an appeal regarding a potential conflict between the two

sentences is an appeal of a sentence under the appeal waiver.

Because Higgins’s challenge to the conditions of SR in the written judg-

ment is an appeal of his sentence under 18 U.S.C. § 3742, it is covered by the

waiver of appeal unless it constitutes a “punishment imposed in excess of the

statutory maximum” as provided by the appeal waiver. Although in address-

ing the statutory maximum in the imprisonment context we need consider only

13 The main reason that the oral pronouncement of sentence prevails over the written

in situations of conflict is because the defendant has a constitutional right to be present at

sentencing, and defendants are often not present for the written pronouncement. See United

States v. Torres-Aguilar, 352 F.3d 934, 935–36 (5th Cir. 2003) (per curiam); United States v.

Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam).

14 See Torres-Aguilar, 352 F.3d at 935–36; Martinez, 250 F.3d at 942.

15 See United States v. Warden, 291 F.3d 363, 364–65 (5th Cir. 2002) (holding that

differences between two sentences were mere ambiguity consistent with the intent of the

court); Martinez, 250 F.3d at 942 (“If, however, there is merely an ambiguity between the two

sentences, the entire record must be examined to determine the district court’s true intent.”).

8

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the length of time authorized by statute, an appeal regarding the conditions of

SR must be reviewed under 18 U.S.C. § 3583. The statutory limitations to

conditions of SR under § 3583 are as follows:

The court may order, as a further condition of supervised release,

to the extent that such condition—

(1) is reasonably related to the factors set forth in section

3553(a)(1), (a)(2) (B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably

necessary for the purposes set forth in section 3553(a)(2)(B),

(a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statement issues by the

Sentencing Commission pursuant to 28 U.S.C. 994(a); any condi-

tion set forth as a discretionary condition of probation in section

3563(b) and any other condition it considers to be appropriate.

18 U.S.C. § 3583(d). Because Higgins puts forth no argument that the conflict

in sentencing violates these statutory limitations in a way that constitutes a

punishment in excess of the statutory maximum, his conditions-of-SR argu-

ments fall within the appeal waiver and are waived on appeal. 16

Because all of Higgins’s arguments on appeal have been waived under

his plea agreement, the appeal is DISMISSED.

16 See United States v. McDaniel, No. 13-10397, 2013 WL 5960715, at *1 (5th Cir.

Nov. 8, 2013) (per curiam) (unpublished) (holding that appeal waiver applied where defen-

dant challenged conditions of SR because of perceived conflict between oral and written pro-

nouncements). Because Higgins does not argue that this conflict is merely a clerical error

that should be corrected, there is no need to determine whether the appeal waiver applies to

such corrections under Federal Rules of Criminal Procedure 36. See United States v. Rosales,

448 Fed. App’x 466, 466−67 (5th Cir. 2011) (per curiam) (remanding for correction of clerical

error in written judgment notwithstanding enforceable appeal waiver).

9