United States v. Ronald Damon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-2444

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UNITED STATES OF AMERICA

v.

RONALD DAMON,

Appellant

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-06-cr-00471-001)

District Judge: Hon. Freda L. Wolfson

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Argued June 5, 2019

Before: JORDAN, BIBAS, and MATEY, Circuit Judges.

(Filed: August 6, 2019)

Richard Coughlin

Julie A. McGrain (Argued)

Office of the Federal Public Defender

800-840 Cooper Street, Suite 350

Camden, New Jersey 08102

Counsel for Appellant

Craig Carpenito

Mark E. Coyne

John F. Romano (Argued)

Office of the United States Attorney

970 Broad Street, Room 700

Newark, New Jersey 07102

Jason M. Richardson

Office of the United States Attorney

401 Market Street

Camden, New Jersey 08101

Counsel for Appellee

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OPINION

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MATEY, Circuit Judge.

Ronald Damon signed a plea agreement with the United

States accepting responsibility for a federal crime. He served

time in custody and left prison. Now, having reentered society,

he wants a fresh start, free from further oversight by the federal

government. So Damon asked to end his term of supervised

release a few years early. He offered facts and circumstances

justifying his request, and highlighted the hardships imposed

by restrictions on his activities. But Damon’s present desires

are controlled by a past decision: his contract with the

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government containing the terms and conditions of his guilty

plea. Because his plea agreement precludes challenges to his

sentence, and because any shortening of his supervision would

amount to a change in his sentence, we will affirm the decision

of the District Court.

I. The Proceedings Before the District Court

A. The Written Plea Agreement

The facts are not in dispute. Damon pleaded guilty to

knowingly and intentionally distributing and possessing with

intent to distribute 50 grams or more of crack cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (as amended in

2006) and 18 U.S.C. § 2. As is customary in federal criminal

practice, the Government and Damon memorialized their

agreement in writing. The plea agreement includes a provision

stating that both parties “waive certain rights to file an appeal,

collateral attack, writ or motion after sentencing, including, but

not limited to an appeal under 18 U.S.C. § 3742 or a motion

under 28 U.S.C. § 2255.” (App. at 22.) Schedule A to the plea

agreement provides:

Ronald Damon knows that he has and, except as

noted below in this paragraph, voluntarily

waives, the right to file any appeal, any collateral

attack, or any other writ or motion, including but

not limited to an appeal under 18 U.S.C. § 3742

or a motion under 28 U.S.C. § 2255, which

challenges the sentence imposed by the

sentencing court if that sentence falls within or

below the Guidelines range that results from the

agreed total Guidelines offense level of 33.

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(Id. at 26.) The agreement also states that, “in addition to

imposing any other penalty on Ronald Damon, the sentencing

judge . . . pursuant to 21 U.S.C. § 841, must require Ronald

Damon to serve a term of supervised release of at least 5 years,

which will begin at the expiration of any term of imprisonment

imposed.” (Id. at 21.)

Both Damon and the Government executed the plea

agreement. Following Federal Rule of Criminal Procedure

11(b)(1), the District Judge explained the agreement, including

the maximum penalties, fines, and period of supervised release.

And as required by Federal Rule of Criminal Procedure

11(b)(1)(N), the District Court asked Damon whether he

understood that he was “giving up [his] right to file an appeal

or otherwise attack the sentence that may be imposed in this

matter” and Damon agreed. (Id. at 42–43.) A portion of their

exchange is illustrative:

The Court: Do you understand that by the terms

of the plea agreement both you and the

government have given up the right to file an

appeal or post-conviction relief under certain

circumstances that are set forth in the plea

agreement itself and in Schedule A to the plea

agreement? I referred you to those provisions

before. Do you understand that?

The Defendant: Yes.

The Court: Did you discuss with your attorney

this waiver of appeal and waiver of your right to

file for post-conviction relief?

The Defendant: Yes.

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The Court: And are you satisfied with the

explanations that your attorney provided?

The Defendant: Yes.

The Court: And do you agree with those waivers

of appeal and waiver of your right to file for post-

conviction relief?

The Defendant: Yes.

(App. at 56–57.) The District Court found that the plea was

“knowingly and voluntarily made” and accepted the plea. (Id.

at 58–59.)

B. Damon is Sentenced According to the Plea

Having pleaded guilty, Damon faced 262–327 months’

imprisonment under the advisory Sentencing Guidelines.

Upholding its end of the deal, the Government filed a motion

for a downward departure under U.S.S.G. § 5K1.1, which the

Court weighed favorably in sentencing Damon to 144 months’

imprisonment. The District Court also imposed the required

five-year term of supervised release, a $2,000 fine, and a

special assessment of $100.

C. Damon Asks for an Early End to Supervised Release

After serving his prison term and about thirty-two

months of his sixty-month term of supervised release, Damon

sought to terminate the remainder of his supervision. The

District Court found that the waiver provision of the plea

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agreement barred Damon’s request, and denied his application.

Damon timely appealed. 1

II. The Plain Language of the Agreement Controls

On appeal, Damon acknowledges the waiver, but argues

that it doesn’t extend to his application. The Government

disagrees and has moved for summary action to enforce the

terms of the waiver and to dismiss this appeal, or alternatively,

to affirm the District Court’s order.

A. Waiving the Right to Appeal

The parties’ dispute is narrow. Damon agrees that his

plea was both knowing and voluntary, eliminating

constitutional concerns. And he does not dispute that his plea

agreement contains a waiver, so “we must decide whether the

appellate waiver before us bars this appeal.” United States v.

Wilson, 707 F.3d 412, 414 (3d Cir. 2013). Waivers in plea

agreements are neither new nor unusual, and we have long

enforced their terms. See United States v. Khattak, 273 F.3d

557, 562 (3d Cir. 2001). But a waiver only bars an appeal that

falls inside its scope. Garza v. Idaho, 139 S. Ct. 738, 744

(2019). We will enforce an appellate waiver in a plea

agreement and decline to review the merits of Damon’s appeal

1

The District Court had subject matter jurisdiction over

Damon’s motion under 18 U.S.C. § 3231 and we have

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We exercise plenary review to decide whether a

defendant’s appeal falls within the scope of a waiver provision

in a plea agreement. United States v. Goodson, 544 F.3d 529,

537, n.6 (3d Cir. 2008).

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only “if we conclude (1) that the issues [Damon] pursues on

appeal fall within the scope of his appellate waiver and (2) that

he knowingly and voluntarily agreed to the appellate waiver,

unless (3) enforcing the waiver would work a miscarriage of

justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.

2008). Damon aims his arguments at the first step in this test

and we use familiar principles of interpretation to review.

B. Damon Identifies no Ambiguity in the Agreement

We begin by noting what Damon does not argue.

Damon states that the plea agreement bars a direct appeal of

his sentence. And he maintains that the “waiver bars an appeal

of any component of punishment imposed at the original

sentencing proceeding, including the terms and conditions of

supervised release.” (Opening Br. at 9.) Instead, he reasons that

his present motion for early termination of his supervised

release falls outside the waiver on temporal and factual

grounds, labeling it as a motion for post-sentencing relief. In

other words, Damon does not see a textual hook in the plea

agreement that would allow for a reduced term of supervised

release as part of his bargain. Rather, he sees an opening in the

logic behind the text, arguing that the agreement should best

be construed to allow a fresh examination of his progress based

on the most recent information.

Our task is one of interpretation, “guided by the ‘well-

established principle that plea agreements, although arising in

the criminal context, are analyzed under contract law

standards.’” Corso, 549 F.3d at 927 (quoting Goodson, 544

F.3d at 535 n.3) (internal quotation marks omitted). Thus, “we

begin our analysis as we would with any contract,” by

“examin[ing] first the text of the contract.” United States v.

Gebbie, 294 F.3d 540, 545 (3d Cir. 2002). “Because we apply

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rules of contract interpretation to plea agreements, the first step

is to decide whether the plea agreement is ambiguous or

unambiguous. A contract is ambiguous if it is capable of more

than one reasonable interpretation.” Id. at 551 (internal

quotation marks omitted).

In the agreement, Damon waived the right to file “any

appeal . . . which challenges the sentence imposed by the

sentencing court if that sentence falls within or below the

Guidelines range that results from the agreed total Guidelines

offense level of 33.” (App. at 26.) Damon’s sentence fell within

this Guidelines range. So the waiver governs if the “sentence

imposed” on Damon includes the term of his supervised release

and if this appeal “challenges” that sentence. (Id.)

1. The Term “Sentence” in Damon’s Plea Agreement

Refers to All Penalties

We focus not on intent, but on words, as “the language

of a waiver, like the language of a contract, matters greatly.”

Goodson, 544 F.3d at 535. And the word “sentence” is

commonly understood to encompasses all penalties imposed

on a defendant, which can include penalties beyond

imprisonment. See THE AMERICAN HERITAGE DICTIONARY OF

THE ENGLISH LANGUAGE 1302, 1597 (5th ed. 2018) (defining

“sentence” as “[t]he penalty imposed by a law court or other

authority upon someone found guilty of a crime or other

offense” and defining “penalty” as “[a] punishment imposed

for a violation of law.”); WEBSTER’S NEW WORLD COLLEGE

DICTIONARY 1180, 1323 (5th ed. 2018) (defining “sentence” as

“a decision or judgment, as of a court; esp., the determination

by a court of the punishment of a convicted person” or

“punishment itself” and defining “punishment” as “a penalty

imposed on an offender for a crime or wrongdoing”); BLACK’S

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LAW DICTIONARY 1428, 1569 (10th ed. 2014) (defining

“sentence” as “[t]he judgment that a court formally pronounces

after finding a criminal defendant guilty; the punishment

imposed on a criminal wrongdoer” and defining “punishment”

as “[a] sanction — such as a fine, penalty, confinement, or loss

of property, right, or privilege — assessed against a person

who has violated the law.”). The ordinary meaning of

“sentence” can only reasonably be read to include all forms of

punishment or penalties imposed on a defendant. By extension,

Damon’s “sentence” must be read to include the term of his

supervised release, bringing Damon’s challenge within the

scope of the bargained-for waiver.

The structure of the plea agreement confirms this

common understanding of “sentence.” Under the heading

“Sentencing,” the plea agreement provides that the sentencing

judge will impose penalties that include, at a minimum: (1)

imprisonment; (2) a fine; (3) forfeiture; and (4) a term of

supervised release. (App. 20–21.) The plea agreement also

made clear that “pursuant to 21 U.S.C. § 841,” the sentencing

judge “must require Ronald Damon to serve a term of

supervised release of at least 5 years, which will begin at the

expiration of any term of imprisonment imposed.” (Id. at 21.)

Section 841(b)(1)(A), in turn, states that “any sentence under

this subparagraph shall . . . impose a term of supervised release

of at least 5 years in addition to such term of imprisonment.”

Construing the language of the plea agreement in a “manner

that gives meaning to each provision,” as we must, the term

“sentence” unambiguously includes the imposition of a term of

supervised release. United States v. Floyd, 428 F.3d 513, 516

(3d Cir. 2005).

Reading “sentence” to include a term of supervised

release also agrees with our prior holdings. In Goodson, we

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held that the defendant’s appellate waiver “encompassed his

right to appeal the conditions of his supervised release.” 544

F.3d at 538. Construing the appellate waiver presented, we

rejected the defendant’s contention “that the waiver’s use of

the term ‘sentence’ should be construed to mean only the term

of incarceration” and held that “the duration, as well as the

conditions of supervised release are components of a

sentence.” Id. at 537–38. “Under chapter 227 of the Federal

Crimes Code, the period of incarceration is but one component

of a sentence. Other components may be probation under §

3561, supervised release under § 3583, a fine under § 3571,

and/or restitution under § 3556.” Id. at 537. Indeed, Section

3583(a) provides that a court “may include as a part of the

sentence a requirement that the defendant be placed on a term

of supervised release after imprisonment.” Id. (quoting 18

U.S.C. § 3583(a)) (emphasis in original). Thus, we concluded

that “the text of the waiver . . . establishes that the term

‘sentence’ as used in [defendant’s] appellate waiver applies to

not only the period of incarceration that will be imposed, but

also any other component of punishment.” Id. at 538; see also

United States v. Island, 916 F.3d 249, 252 (3d Cir. 2019)

(“[T]he supervised release term constitutes part of the original

sentence”) (internal quotations omitted); Wilson, 707 F.3d at

414 (“the word ‘sentence’ in a broad appellate waiver . . .

includes the terms and conditions of supervised release and,

therefore, bars appeals challenging those terms and

conditions.”). The “sentence imposed” on Damon likewise

encompassed the duration of his supervised release. 2

2

Our reading of the “sentence imposed” on Damon also

tracks the Supreme Court’s understanding that supervised

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2. Damon’s Waiver Bars “Challenges” to the Term of his

Supervised Release

In the agreement, Damon waived the right to file any

motion or appeal that “challenges the sentence imposed.”

(App. at 26.) Damon seeks to evade this language by arguing

that his motion is not a challenge to his sentence, but a motion

filed in a separate chronological phase and in a different

proceeding. But this argument is unsupported by the text of the

plea agreement and by any sound understanding of what is

included in a sentence. Supervised release is, as just explained,

part of the sentence that Damon received.

The verb “challenges” in the legal context is generally

understood to mean “to dispute or call into question.” BLACK’S

LAW DICTIONARY 279 (10th ed. 2014); see also THE

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE 307 (5th ed. 2018) (defining “challenge” as a

“formal objection” or a legal action “testing the validity of an

action, particularly by the government.”); WEBSTER’S NEW

WORLD COLLEGE DICTIONARY 248 (5th ed. 2018) (defining

“challenge” as “a calling into question; a demanding of proof

[or] explanation.”). Damon’s motion does just that,

questioning his original sentence by seeking to shorten the term

release is just one component of a sentence. See United States

v. Haymond, 139 S. Ct. 2369, 2379 (2019) (plurality opinion)

(“[a]n accused’s final sentence includes any supervised release

sentence he may receive[.]”); Mont v. United States, 139 S. Ct.

1826, 1834 (2019) (“Supervised release is a form of

punishment that Congress prescribes along with a term of

imprisonment as part of the same sentence.”).

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of his supervised release. By its very nature, it is a challenge to

the sentence imposed.

Although this Court has not addressed the term

“challenges” in the context of a motion to terminate supervised

release brought under § 3583(e)(1), the Sixth Circuit decision

in United States v. Scallon, 683 F.3d 680 (6th Cir. 2012) is

instructive. There, the Sixth Circuit held that “[t]he sorts of

challenges [defendant] brought in his § 3583(e)(2) motion

could have been raised on direct appeal or as part of a collateral

attack, and [defendant] unequivocally waived both of those

options in his written plea agreement.” Scallon, 683 F.3d at

683–84. The Sixth Circuit therefore held that “a defendant’s

appeal from the denial of his § 3583(e)(2) motion falls within

the scope of a broadly-worded appeal waiver like [the

defendant’s].” Id. at 684. Likewise, the “Sentencing” portion

of Damon’s plea agreement noted the requirement that he serve

“a term of supervised release of at least 5 years.” (App. at 21.)

He cannot now challenge the term of his supervised release by

reframing it as a post-sentence modification.

C. Damon is Bound by His Bargain with the Government

As with any contract, Damon and the Government are

held to the negotiated terms of their agreement. To interpret the

waiver as Damon urges would stretch its ordinary meaning

beyond normal usage. So “we have no difficulty in holding a

defendant to the plea agreement [when] he seeks the benefits

of it without the burdens.” United States v. Williams, 510 F.3d

416, 422 (3d Cir. 2007) (internal quotations and alterations

omitted). Thus, “we must construe the phrase ‘any appeal . . .

which challenges the sentence imposed’ to mean what it

plainly states” United States v. Banks, 743 F.3d 56, 59 (3d Cir.

2014), and hold that Damon’s challenge to the duration of his

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supervised release falls within the scope of his appellate

waiver.

Damon knowingly and voluntarily entered into a plea

agreement with the government that provided him with certain

undeniable benefits, most notably the Government’s motion

for a downward departure from the Sentencing Guidelines.

Damon was sentenced to 144 months imprisonment, far lower

than the 262 to 327 months of imprisonment he faced under the

Guidelines. In return, the Government bargained for and

received a guilty plea and waiver of “the right to file any

appeal, any collateral attack, or any other writ or motion . . .

which challenges the sentence imposed by the sentencing

court.” (App. at 26.) We find no issue that presents a

miscarriage of justice. As we have cautioned, a contrary

conclusion “would permit an end run around the waiver.”

Wilson, 707 F.3d at 415, n.2 (distinguishing between a

defendant’s ability to appeal a later-imposed sentence

modification sought by the government from an appeal brought

by the defendant to modify the terms of supervised release

imposed as part of the original sentence). 3 So we will affirm

the decision of the District Court and grant the Government’s

motion to the extent the District Court’s order is affirmed.

3

The Government also raises an important point: it is

unclear that any reduction of supervised release would be

appropriate because 18 U.S.C. § 841(b)(1)(A) imposes a

mandatory minimum term of supervision. But we do not reach

this issue. See United States v. Gwinnett, 483 F.3d 200, 206 (3d

Cir. 2007).

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