United States v. Brown

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4599

WILLIE EDWARD BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-98-174)

Argued: September 26, 2000

Decided: November 16, 2000

Before WILKINSON, Chief Judge, and MOTZ and

KING, Circuit Judges.

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Dismissed by published opinion. Judge Motz wrote the opinion, in

which Chief Judge Wilkinson and Judge King joined.

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COUNSEL

ARGUED: Christopher Ford Cowan, COWAN, NORTH &

LAFRATTA, L.L.P., Richmond, Virginia, for Appellant. Anne Mar-

garet Hayes, Assistant United States Attorney, Raleigh, North Caro-

lina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States

Attorney, Raleigh, North Carolina, for Appellee.

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OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Willie Edward Brown seeks to appeal the sentence imposed upon

him pursuant to his guilty plea. Specifically, Brown seeks to chal-

lenge the district court's enhancement of his sentence based on his

status as a career offender. The government has moved to dismiss on

the ground that Brown waived his right to appeal his sentence in his

plea agreement. In the alternative, the government argues that Brown

was properly sentenced as a career offender. Because we conclude

that Brown has waived his right to appeal, we dismiss the appeal.

I.

After Brown stabbed a man at the Fort Bragg Military Reservation

with a Samurai-style sword, he pled guilty to a single count of assault

with a dangerous weapon with intent to do bodily harm, in violation

of 18 U.S.C. § 113(a)(3) (Supp. IV 1998). Brown and the government

memorialized their plea agreement in a four-page document. Para-

graph 2b of that agreement, which appears on the first page, contains

a provision stating that Brown agrees:

To waive knowingly and expressly the right to appeal what-

ever sentence is imposed on any ground, including any

appeal pursuant to 18 U.S.C. § 3742, and further to waive

any right to contest the conviction or the sentence in any

post-conviction proceeding, including any proceeding under

28 U.S.C. § 2255, excepting an appeal or motion based upon

grounds of ineffective assistance of counsel or prosecutorial

misconduct not known to the Defendant at the time of the

Defendant's guilty plea.

Paragraph 3b of the agreement, which appears on page three, provides

in pertinent part that the "Defendant [Brown] understands . . . [t]hat

sentencing will be in accordance with the United States Sentencing

Guidelines, that any sentence imposed will be without parole, and that

the Court may depart from those guidelines under some circum-

stances."

2

During the plea colloquy, the district court advised Brown of the

consequences of pleading guilty and questioned Brown to ensure that

the plea was both knowing and voluntary. Before accepting Brown's

plea, the court also reviewed the contents of the plea agreement with

him. As part of this process, the court advised Brown that he was

waiving the right to appeal his sentence:

The Court: Now, I have been handed a document entitled

"Memoranda of Plea Agreement in your

Case." It's got four pages, and it appears to

have your signature and that of Mr. Parker and

Mr. Bockin, the Special Assistant U. S. Attor-

ney. And I ask you, did you have an opportu-

nity to read and to discuss this plea agreement

with your lawyer, Mr. Parker, before you

signed it?

Defendant: Yes, sir.

The Court: And does this plea agreement represent in its

entirety your agreements with the United

States?

Defendant: Yes, sir.

The Court: Did you understand all the terms in this plea

agreement, the language, even any legal

phrases that were in here after you talked with

Mr. Parker about it?

Defendant: Yes, sir.

The Court: Has anyone made any other or different prom-

ise to get you to plead guilty to this charge,

other than what's written in this plea agree-

ment?

Defendant: No, sir.

3

The Court: Has anyone threatened you or tried to force

you in any way to get you to plead guilty?

Defendant: No, sir.

The Court: Do you understand that this is a felony and

you're going to lose certain valuable civil

rights? You have to say "yes" or "no."

Defendant: Yes, sir.

The Court: And if I accept your plea today you cannot

ever later withdraw your plea. Do you under-

stand that?

Defendant: Yes, sir.

The Court: Have you answered all of my questions truth-

fully?

Defendant: Yes, sir.

The Court: Now, I point out to you paragraph 2-C. You

agree to waive your rights -- correction, 2-B

-- waive your right to appeal whatever sen-

tence is imposed, reserving only the right to

appeal based on prosecutorial misconduct or

ineffective assistance of counsel. Do you

understand that?

Defendant: Yes, sir.

The Court: In other words, you can't appeal as long as

your sentence is in accordance with the law.

Defendant: Yes, sir.

The Court: All right. Do you need any more time to think

about your plea or to talk with your lawyer,

Mr. Parker, before you enter your plea?

4

Defendant: No, sir.

Based on this colloquy, the court determined that Brown was compe-

tent and capable of entering a voluntary plea, and that his plea of

guilty, and the subsequent waiver of his right to appeal, was knowing

and voluntary.

In a pre-sentence report, the probation officer designated Brown a

career offender pursuant to U.S.S.G. § 4B1.1 on the basis of two prior

felony convictions for crimes of violence, namely a North Carolina

conviction for breaking and entering and a South Carolina conviction

for assault and battery of a high and aggravated nature. Brown

objected to his designation as a career offender on the ground that,

under South Carolina law, assault and battery of a high and aggra-

vated nature was neither a felony nor a violent crime. The district

court rejected this argument and accepted the probation officer's des-

ignation of Brown as a career offender. Based on his career offender

status, Brown's sentencing range was seventy-seven to ninety-six

months. The district court imposed a sentence of ninety-six months,

the maximum allowed under the Sentencing Guidelines.

Brown now appeals his designation as a career offender, and his

resulting sentence, on the same ground that he raised in the district

court, as well as on new ground, namely that the first predicate

offense, breaking and entering, was insufficient to trigger career

offender status because it was not a felony conviction and because

Brown was only sixteen at the time of his conviction. The government

moves to dismiss Brown's appeal, asserting that he waived his right

to appeal in his plea agreement.1

1

II.

The Constitution does not provide criminal defendants an appeal as

a matter of right. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The

United States Code, however, permits a criminal defendant to appeal

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1 Alternatively, the government contends that we should affirm because

the district court properly sentenced Brown as a career offender. Because

we dismiss the appeal, we do not consider the underlying issue as to

whether the district court properly applied the Sentencing Guidelines.

5

a sentence imposed "as a result of an incorrect application of the Sen-

tencing Guidelines." 18 U.S.C. § 3742(a)(2) (1994). A defendant can,

of course, waive this statutory right to appeal. See United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether he has effectively

done so is a matter of law that we review de novo.

We have considered the effectiveness of a plea agreement appeal

waiver in two cases, United States v. Marin, 961 F.2d 493, 496 (4th

Cir. 1992), and United States v. Bowden, 975 F.2d 1080 (4th Cir.

1992). These cases establish that, with two exceptions, a defendant

may not appeal his sentence if his plea agreement contains an express

and unqualified waiver of the right to appeal, unless that waiver was

unknowing or involuntary. An express knowing waiver will not bar

appeal of a sentence when the sentence was (1) imposed in excess of

the maximum penalty provided by law or (2) based on a constitution-

ally impermissible factor such as race. See Marin, 961 F.2d at 496.

The sentences at issue in Marin and Bowden involved neither of these

exceptions, nor are these exceptions at issue here.

In Marin, we held that because the plea agreement contained an

express and unqualified waiver of the defendant's right to appeal his

sentence and the record did not indicate that the waiver was anything

less than knowing and voluntary, the waiver was valid. See Marin,

961 F.2d at 494-96 & n.1. Although Marin claimed that the district

court misapplied the Guidelines in computing his sentence, we con-

cluded that this type of claim was waived by the applicable provision

in the plea agreement.22 We reasoned:

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2 The plea agreement in Marin stated, in pertinent part:

Defendant, HERBERT JOHN MARIN, is aware that in some

counts of the Criminal Information sentence will be imposed in

conformity with the Federal Sentencing Guidelines and Policy

Statement. . . . In addition, Defendant, knowing that he has a

right of direct appeal of the sentence under 18 U.S.C. § 3742(a)

and the grounds listed therein, expressly waives the right to

appeal his sentence on those grounds or on any ground . . . .

Defendant, HERBERT JOHN MARIN, is also aware that his

sentence has not yet been determined by the Court. Defendant is

aware that any estimate of probable sentencing range that he may

have received from his counsel, the United States, or the proba-

6

[A] defendant could not be said to have waived his right to

appellate review of a sentence imposed in excess of the

maximum penalty provided by statute or based on a consti-

tutionally impermissible factor such as race. However, the

sentence that Marin seeks to appeal is not such a sentence.

Assuming the district court committed the errors that Marin

alleges, his complaints at most rest on an improper applica-

tion of the guidelines and a violation of a procedural rule.

Id. at 496. Thus, because we concluded that the plea agreement con-

tained an express waiver of Marin's right to appeal, which was know-

ing and voluntary, it precluded an appeal based on the claim that the

district court misapplied the Guidelines.

In Bowden, however, we considered a plea agreement with a differ-

ently worded appeal waiver and determined that it did not bar the

defendant from challenging the district court's application of the

Guidelines. See Bowden, 975 F.2d at 1081 n.1. In that case, the plea

agreement stated that the defendant "waives any appeal . . . if the sen-

tence imposed herein is within the guidelines." Id. After being sen-

tenced, Bowden sought to appeal his designation as an armed career

criminal under 18 U.S.C. § 924(e) as "not within the guidelines." Id.

(internal quotations omitted). We concluded that"a fair reading" of

the waiver provision in the plea agreement "preserve[d] Bowden's

right to challenge the district court's application of the Guidelines and

the armed career criminal enhancement of § 924(e)." Id. Accordingly,

we refused to find that Bowden had waived his right to appeal on this

ground.

Brown contends that his appeal falls within the ambit of Bowden,

and, therefore, the waiver does not bar his appeal. Brown maintains

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tion office is a prediction, not a promise, and is not binding on

the United States, the probation office, or the Court. Realizing

the uncertainty in estimating what sentence he will ultimately

receive, Defendant knowingly waives his right to appeal the sen-

tence in exchange for the concessions made by the United States

in this agreement.

Marin, 961 F.2d at 494 n.1.

7

that his plea agreement appeal waiver was predicated upon the condi-

tion that he be sentenced according to a proper application of the

Guidelines and, thus, he can appeal on the ground that his sentence

did not accord with the Guidelines. Despite Brown's protestations to

the contrary, this case is controlled by our ruling in Marin. The plea

agreement here contains an express, unqualified waiver of the right

to appeal "whatever sentence is imposed," which the district court

accepted only after thoroughly examining Brown as to his knowledge

of its terms and the voluntariness of his agreement. Such a waiver

precludes a claim that the given sentence resulted from a misapplica-

tion of the Guidelines.

Brown largely bases his contrary contention on language in para-

graph 3b of his plea agreement, which states that"[t]he Defendant

understands . . . [t]hat sentencing will be in accordance with the

United States Sentencing Guidelines." Relying on this language,

Brown argues that "[a]s a condition precedent to the waiver of his

appeal rights [his] sentence must be based upon a proper application

of the sentencing guidelines." The fundamental flaw in this argument

is that Brown's plea agreement, unlike Bowden's, did not "condition"

waiver of his appeal rights "on a proper application of the guidelines."

While Bowden's plea agreement provided that the defendant agreed

to "waive[ ] any appeal . . . if the sentence imposed . . . [wa]s within

the guidelines," Bowden, 975 F.2d at 1081 n.1 (emphasis added),

Brown agreed to waive the right to appeal "whatever sentence is

imposed on any ground, including any appeal pursuant to 18 U.S.C.

§ 3742." (emphasis added). Section 3742 provides for "review of an

otherwise final sentence if the sentence . . . was imposed as a result

of an incorrect application of the sentencing guidelines." 18 U.S.C.

§ 3742(a)(2) (emphasis added). Thus, rather than making his waiver

contingent on a sentence proper under the Guidelines, Brown

expressly waived his right to appeal "whatever sentence" the court

imposed, "including" one based on an asserted"incorrect application"

of the Guidelines.

Brown's acknowledgment in paragraph 3b of the plea agreement

that he "underst[oo]d" that sentencing would be "in accordance with

the . . . Guidelines" does not change or qualify his unconditional

waiver of his right to appeal "any sentence . . . imposed on any

ground." A common sense reading of paragraph 3b indicates that its

8

purpose is merely to inform Brown that his sentence will be calcu-

lated using the Sentencing Guidelines. The paragraph does not, in any

way, condition the waiver of Brown's right to appeal on a proper

application of the Guidelines, as the plea in Bowden did. To read

paragraph 3b in the manner proposed by Brown would be to render

the unqualified waiver in paragraph 2b meaningless.

We note that the Ninth Circuit rejected an identical argument in

United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). In that

case, as here, the plea agreement contained a provision stating that the

defendant waived any right to appeal his sentence under 18 U.S.C.

§ 3742. See Bolinger, 940 F.2d at 479. The parties also agreed, how-

ever, that the district court could "depart upward or downward under

the sentencing guidelines" but could not impose a sentence exceeding

36 months. Id. After the district court imposed a sentence of 36

months, Bolinger sought to appeal on the ground that the court's

application of the Guidelines was illegal. Like Brown, Bolinger

claimed that his waiver was ineffective because his plea agreement

specified that he would be sentenced "under the guidelines." Id. at

480. The Bolinger court rejected that argument, reasoning that "[t]he

plain meaning of the plea agreement is that Bolinger waived his right

to appeal the sentence . . . unless he received a term of incarceration

in excess of 36 months." Id. The court explained that "focusing exclu-

sively on the `under the guidelines' language, ignores the plain mean-

ing of the plea agreement and fails to account adequately for the

express waiver of the section 3742 appeal right." Id. at 480 n.1. These

words are equally applicable here. See also United States v. Yemitan,

70 F.3d 746, 748 (2d Cir. 1995) (holding that if an express appeal

waiver "does not preclude a challenge to the sentence as unlawful,

then the covenant not to appeal becomes meaningless").

Nor, contrary to Brown's suggestion, does the district court's state-

ment during the plea colloquy, "[i]n other words, you can't appeal as

long as your sentence is in accordance with the law," support Brown's

contention that his waiver was conditioned upon a proper application

of the Guidelines. Such an argument is only possible if the district

court's remark is taken out of context. Read in the context of the plea

colloquy as a whole, the district court's statement clearly refers to the

two exceptions to the waiver listed in the plea agreement, namely

ineffective assistance of counsel and prosecutorial misconduct:

9

The Court: Now, I point out to you paragraph 2-C. You

agree to waive your rights -- correction, 2-B

-- waive your right to appeal whatever sen-

tence is imposed, reserving only the right to

appeal based on prosecutorial misconduct or

ineffective assistance of counsel. Do you

understand that?

Defendant: Yes, sir.

The Court: In other words, you can't appeal as long as

your sentence is in accordance with the law.

Defendant: Yes, sir.

(Emphasis added). Thus, the district court carefully directed Brown's

attention to the precise paragraph in the plea agreement in which he

waived his right to appeal "whatever sentence is imposed," reserving

only an appeal based on "prosecutorial misconduct or ineffective

assistance," asked Brown if he understood the waiver, and then

repeated the waiver's scope "in other words" to be sure Brown under-

stood it.

During this colloquy, the district court did not state that the waiver

would allow appeals asserting misapplications of the Guidelines.

Moreover, the waiver provision that the district court referred Brown

to in the colloquy clearly provides that it precludes appeals under 18

U.S.C. § 3742 (the statute otherwise permitting appeals challenging

misapplications of the Guidelines). If we were to adopt Brown's inter-

pretation of the district court's remark, we would have to read the

express reference to § 3742 out of the plea agreement. Clearly, the

district judge did not intend his statement to render meaningless the

very language he sought to explain to Brown. Thus, Brown's reliance

on the district court's remark during the plea colloquy is misplaced.

It is certainly true that the plea agreement in this case was not art-

fully drafted. The appeal waiver, for example, excepted appeals based

on ineffective assistance of counsel or prosecutorial misconduct, but

failed to state that the waiver did not preclude an appeal of a sentence

10

in excess of the statutory maximum or based on an unconstitutional

factor, like race. In this regard, the waiver was inconsistent with our

precedent. See Marin, 961 F.2d at 496. Although we are troubled by

this defect and trust that the government will strive to draft more com-

plete agreements in the future, the deficiencies in this plea agreement

are not fatal to the validity of the waiver.

They are not fatal because the plea agreement stated in plain lan-

guage that Brown waived the right to appeal "whatever sentence

[was] imposed . . . including" an appeal pursuant to § 3742. Brown's

colloquy with the district court clearly reveals that Brown's plea,

including the waiver of his right to appeal, was knowing and volun-

tary. Indeed, Brown indicated to the district court that he understood

all the legal terms in the plea agreement after they had been explained

to him by his counsel.3 3 Even on appeal, Brown makes no claim that

his attorney failed to explain the legal terms or consequences of each

provision of his plea agreement. This is particularly relevant because

although the appeal waiver did not expressly state that it governed

appeals of sentences calculated using the Sentencing Guidelines, it

did expressly state that it applied to any appeal pursuant to 18 U.S.C.

§ 3742.

Nor is the result we reach here inequitable. Rather, it simply holds

Brown to his bargain. As the Ninth Circuit noted in similar circum-

stances:

Unlike a defendant who is sentenced after trial, a defendant

who enters a plea bargain has some control over the terms

of his sentence. If a defendant wants to ensure that he is sen-

tenced in strict accordance with the guidelines, he can refuse

to waive his right to appeal as a condition of the plea.

Bolinger, 940 F.2d at 480 n.1.

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3 The Court: Did you understand all the terms in this plea agreement,

the language, even any legal phrases that were in here

after you talked with Mr. Parker about it?

Defendant: Yes, sir.

11

Given the explicit nature of the waiver in the plea agreement, its

specific mention of § 3742, and the thorough plea colloquy conducted

by the district court, we can only conclude that the waiver effectively

precludes this appeal. Accordingly, the appeal is

DISMISSED.

12