Thursday, December 03, 2015

United States v. Medina-Carrasco, No. 13-10397 (Graber with Watford; dissent from Friedman (D.D.C.)) --- At long last, the Ninth Circuit weighs in on whether an appeal waiver that contains the proviso "provided the sentence is consistent with this agreement" is enforceable, such that the defendant cannot challenge the basis on which his Guidelines range was computed.  (This was a standard clause in Arizona plea agreements for many years.)  A divided panel of the Ninth Circuit held that the appeal waiver is enforceable, and dismissed the appeal.

The defendant pleaded guilty to illegal reentry pursuant to a plea agreement with an appeal waiver.  The sentencing stipulation set forth the applicable sentencing ranges for each possible offense level under U.S.S.G. ยง 2L1.2 (b) and criminal history category, and explained that the "precise level of offense and number of months will be determined by the court based on the defendant's criminal record."  The appeal waiver recited that the defendant agreed to waive any appeal challenging "the manner in which the sentence is determined and any sentencing guideline determinations" "provided the defendant receives a sentence in accordance with this agreement."  At the change-of-plea hearing, the magistrate judge confirmed that the defendant understood the broad range of sentences he faced and that he was giving up his right to appeal.  At sentencing, counsel conceded that a prior conviction amounted to a "crime of violence" for purposes of the 16-level enhancement.  The judge imposed a sentence slightly below the applicable Guidelines range at level 21.

Based on a string of unpublished decisions, the defendant argued that the appeal waiver was unenforceable for two reasons.  First, the phrase "in accordance with the plea agreement" was ambiguous, and could not cover any challenge to the "crime of violence" enhancement.  Second, the sentence was not "in accordance with" the plea agreement because his prior conviction did not count as a crime of violence.  The panel majority rejected both of these arguments.  For a sentence to be "in accordance with" the plea agreement, it need only fall within "the broad range authorized by the plea agreement."  The phrase was not ambiguous to the panel, and even if it were ambiguous to the defendant, the colloquy with the magistrate judge cured it, because the defendant said that he understood he could get a sentence within the broad range of 4 to 87 months.  Because the defendant's sentence fell within that range, it was not necessary to consider whether the sentencing judge's erroneous classification of the prior conviction as a crime of violence was "in accordance with" the plea agreement.  Engaging that question would sanction an end-run around the appeal waiver, which the majority was unwilling to do.

Judge Friedman disagreed with all of this.  Appeal waivers that extend to sentencing errors are problematic, he posited, because the defendant is agreeing to give up a right to appeal a decision that hasn't yet been made when he pleads guilty.  "Such prospective waivers in anticipation of unknown future events are inherently unknowing and unintelligent."  Judge Friedman saw the proviso as ambiguous, because it was susceptible of two equally plausible interpretations.  Did the defendant agree to give up the right to appeal any sentence within whatever range the sentencing judge computed, or only that within the correctly computed range?  Because both readings were plausible, he would tax the waiver's ambiguity against the government.  He also found that the magistrate judge's colloquy didn't clear up this ambiguity, because the magistrate judge didn't ask the defendant whether he understood that he was giving up the right to appeal the judge's Guidelines calculation. 

Judge Friedman would have gone on to find plain error in the classification of Arizona aggravated assault as a crime of violence, because this conviction allowed a conviction based on the mens rea of knowingly touching a person with intent to injure, and that does not entail the intentional use of violent force required by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).

The decision is here:


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