United States v. Woods, 581 F.3d 531 (7th Cir. 09/09/2009)

This is a consolidated appeal of the denial of three defendants' motions to modify their sentences pursuant to 18 U.S.C. § 3582(c)(2). All three defendants were indicted, along with others, on multiple charges in a drug trafficking ring and entered into plea agreements that included appellate waivers.

The government maintains we should dismiss the appeals because the waiver bars our review. Because we conclude that § 3582(c)(2) motions do not fall within the waiver's scope, we hold that the waivers do not bar the defendants' appeals of the denials of their § 3582(c)(2) motions. However, because we conclude that the district court did not err in denying the motions, we affirm.

A. The Defendants Did Not Waive Their Right to Appeal the Denial of Their § 3582(c)(2) Motions.

Before potentially reaching the merits of the defendants' arguments that the court erred in denying their § 3582(c)(2) motions, we must determine whether to dismiss these appeals because each defendant entered into a plea agreement containing the following waiver:

I further expressly waive my right to appeal my sentence on any ground, including any appeal right conferred by Title 18, United States Code 3742. I also agree not to contest my sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to a proceeding under Title 28, United States Code § 2255.

The defendants maintain that a § 3582(c)(2) motion is not an attack on the original sentence, but rather a request to modify an originally correct sentence based on amendments to the sentencing guidelines. Therefore, they maintain the plea did not bar their motion or this appeal. The government contends we must dismiss the appeal because the waiver bars any manner of appellate review.

We review the enforceability of a waiver agreement de novo. Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999). It is well-settled that appellate waivers in plea agreements are generally enforceable. United States v. Emerson, 349 F.3d 986, 988 (7th Cir. 2003).  "But [an appellate waiver] does not, in every instance, foreclose review." United States v. Mason, 343 F.3d 893, 894 (7th Cir. 2003). For the waiver to be enforceable, the disputed appeal must fall within its scope. See United States v. Vega, 241 F.3d 910, 912 (7th Cir. 2001) (per curiam). We will enforce an appellate waiver if its terms are "express and unambiguous," see United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997), and the record shows that the defendant " 'knowingly and voluntarily' " entered into the agreement. United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001).

A plea agreement is a type of contract subject to contract law principles, but limited by constitutional considerations. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). We interpret the terms of the agreement according to the parties' reasonable expectations and construe any ambiguities against the drafter-the government-and in favor of the defendant. See Vega, 241 F.3d at 912.

The waiver at issue does not include an express provision barring the filing of § 3582(c)(2) motions, as some plea agreements do. See, e.g., United States v. Gordon, 480 F.3d 1205, 1208 (10th Cir. 2007). Therefore, we must interpret the terms of the agreement to decide if this appeal falls within the scope of the waiver. See Vega, 241 F.3d at 912.

Two of our sister circuits have addressed appellate right waivers following the denial of a § 3582(c)(2) motion, and both have concluded that the waivers at issue did not bar the appeals.

We do not believe the waiver here bars the defendants' appeals. Neither the language of the waiver itself nor that of the colloquies demonstrate that the defendants contemplated waiving their right to appeal the denials of the sentence-reduction motions based on subsequent changes to the guidelines.

We do not believe that § 3582(c)(2) motions contest the initially imposed sentence as precluded by the second sentence of the waiver. Rather, § 3582(c)(2) motions bring to the court's attention changes in the guidelines that allow for a sentence reduction.

As the court said in Chavez-Salais, "[W]e do not believe that motions under 18 U.S.C. § 3582(c)(2) are clearly understood to fall within a prohibition on 'any collateral attack.' Defendant's motion under § 3582(c)(2) does not so much challenge the original sentence as it seeks a modification of that sentence based upon an amendment to the Guidelines." 337 F.3d 1170, 1173 (10th Cir. 2003). Indeed, the defendants could not contest the district court's original sentence of imprisonment through § 3582(c)(2) proceedings because § 3582(c)(2) provides no avenue through which to attack the original sentence. See United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir. 2005).

We also conclude that this appeal is not barred by the waiver's first sentence, which gives up each defendant's right to "appeal my sentence on any ground," including any right under 18 U.S.C. § 3742. The defendants have not appealed their originally imposed sentence, rather, they appeal the denials of their sentence-reduction motions because they believe the district court incorrectly concluded that they were ineligible for a reduction. See Leniear, 2009 WL 2216784, at *2

We also reject the government's contention that even if the text of the waiver is not clear, the judge in each plea colloquy sufficiently explained that the defendants could not appeal the rulings.

B.  The District Court Did Not Err in Finding the Defendants Ineligible for a Reduction

In the denials of Bennett's and McDonald's § 3582(c)(2) motions, the district court concluded that the amendments did not benefit either defendant because each was responsible for more than 4.5 kilograms of crack cocaine and the base offense level does not change when such large quantities are involved.

The district court was correct that if the defendants were responsible for more than 4.5 kilograms of crack cocaine, the amendments do not benefit them. See United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (Amendment 706 "affects only defendants who are responsible for distributing fewer than 4.5 kilograms of crack cocaine")

We AFFIRM the district court's denial of the defendants' § 3582(c)(2) motions.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

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