United States v. Thompson ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1011
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY MONDREZ THOMPSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Howard, Circuit Judges.
Charles W. Rankin, with whom Rankin & Sultan was on brief,
for appellant.
Lauren S. Zurier, Assistant United States Attorney, with whom
Zachary A. Cunha, United States Attorney, was on brief, for
appellee.
March 10, 2023
HOWARD, Circuit Judge. Anthony Mondrez Thompson pled
guilty to being a felon in possession of a firearm, pursuant to a
plea agreement in which he agreed to waive his rights to appeal
his conviction and sentence. Despite this waiver, Thompson now
appeals the application of two sentencing enhancements: one for
possession of a firearm in the course of a drug trafficking crime
and the other for possessing one or more firearms with an altered
or obliterated serial number. Because we find his waiver of appeal
to be valid and enforceable, we dismiss his appeal.
I.
Thompson was arrested in June 2017 following a traffic
stop. He had twelve firearms in his vehicle, as well as
approximately 134 grams of methamphetamine pills. He had
previously been convicted of a federal felony offense in 2005.
Following the 2017 arrest, he was ultimately charged with (1) being
a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1),
924(a)(2); (2) possession with intent to distribute 50 grams or
more of methamphetamine under 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B); and (3) possession of a firearm in furtherance of
drug trafficking under 18 U.S.C. § 924(c)(1)(A).
In November 2020, the parties entered a plea agreement
in which Thompson agreed to plead guilty to count 1, being a felon
in possession of a firearm. The government agreed to move to
dismiss the other counts, and the parties agreed to jointly
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recommend a sentence of five to eight years of imprisonment. The
agreement also included an appeal waiver provision that would apply
if the district court sentenced Thompson to an incarcerative term
of eight years or less. Thompson reserved the right, however, to
contest the application of various sentencing enhancements in the
district court.
Following a change of plea hearing, discussed further
below, sentencing took place in December 2021. At sentencing, the
district court accepted the parties' plea agreement and sentenced
Thompson to eight years of imprisonment.
II.
On appeal, Thompson attempts to challenge the
application of two sentencing enhancements: U.S.S.G.
§ 2K2.1(b)(6)(B), which the district court applied for possession
of a firearm in the course of a drug trafficking crime, and
U.S.S.G. § 2K2.1(b)(4)(B), which the district court applied
because one or more of the firearms had an altered or obliterated
serial number.
The gateway issue in this appeal is whether the appeal
waiver contained in Thompson's plea agreement is valid and
enforceable. For the following reasons, we conclude that it is.
A waiver of appellate rights is generally valid if the
defendant entered into the agreement "knowingly and voluntarily."
United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001). To make
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this determination, we look to the "text of the plea agreement and
the content of the change-of-plea colloquy." Id. "Appeal waivers
in plea agreements are 'presumptively valid,' so long as: (1) the
agreement clearly delineates the waiver's scope; (2) the district
court specifically inquired about the waiver at the plea hearing;
and (3) denial of the right to appeal would not constitute a
miscarriage of justice." United States v. Betancourt-Pérez, 833
F.3d 18, 22 (1st Cir. 2016) (citing Teeter, 257 F.3d at 23-25).
The waiver in this case provided that:
Defendant hereby waives Defendant’s right to
appeal the conviction and sentence imposed by
the Court, if the Court sentences Defendant to
8 years of incarceration or less. This
agreement does not affect the rights or
obligations of the United States as set forth
in 18 U.S.C. § 3742(b), and the government
retains its right to appeal any of the Court’s
sentencing determinations.
Thompson focuses only on the second and third Teeter
prongs. He argues (1) that the appeal waiver is unenforceable
because the district court's colloquy with him at the change-of-
plea hearing was confusing and inadequate and (2) that it would
work a miscarriage of justice to enforce the appeal waiver
regarding the serial number sentencing enhancement, which he
argues is unconstitutional. We address each argument in turn.
A.
In Teeter, we held "that the district court must inquire
specifically at the change-of-the-plea hearing into any waiver of
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appellate rights" to ensure that the defendant "freely and
intelligently agreed to waive [his] right to appeal." 257 F.3d at
24. We have not prescribed mandatory language for this inquiry
but have cautioned "that the court's interrogation should be
specific enough to confirm the defendant's understanding of the
waiver and [his] acquiescence in the relinquishment of rights that
it betokens." Id. at 24 n.7. "The adequacy of such an inquiry
'depends on the specifics of the case, including questions asked
or statements made by the judge, characteristics of the defendant,
and evidence that the defendant understood that he was waiving his
right to appeal.'" United States v. Staveley, 43 F.4th 9, 14 (1st
Cir. 2022) (quoting United States v. Morillo, 910 F.3d 1, 3 (1st
Cir. 2018)). In other words, "[c]ontext is important." United
States v. De-La-Cruz Castro, 299 F.3d 5, 11 (1st Cir. 2002).
Thompson argues that the appellate waiver in his plea
agreement should not be enforced, because the district court's
colloquy with him about the waiver was "confusing and failed to
clearly advise the defendant of the rights he was giving up." He
lists three reasons why this was so: (1) the district court did
not read Thompson the waiver or otherwise direct his attention to
the specific text of the waiver, even though Thompson did not have
the plea agreement with him; (2) the court mistakenly informed
Thompson that he could appeal the denial of a motion to suppress
that he had filed and, after subsequently clarifying with the
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prosecutor that Thompson could not appeal that denial, told
Thompson that he had waived the right to appeal "in most
circumstances" without explaining what that meant; and (3) the
court's exchanges with Thompson about his ability to challenge
upward enhancements to the Sentencing Guidelines range were
"confusing."
Two exchanges between the court and Thompson are
primarily at issue. The first took place after the court outlined
various rights Thompson would be waiving by pleading guilty:
THE DEFENDANT: . . . Your Honor, like I was
saying, I accept the binding plea under the
provisions of 11(c)(1)(C) on the one count.
Even in the plea agreement I preserved the
right in order to not be subjected -- to
challenge any aggravating factors or any
sentencing enhancements. I still preserve the
right. I just wanted to clarify that to be
sure on record.
THE COURT: Yes, sir. That's in the plea
agreement.
THE DEFENDANT: Okay.
THE COURT: That you have maintained all of
your rights to challenge the --
THE DEFENDANT: Aggravating factors.
THE COURT: -- sentencing guidelines and any --
THE DEFENDANT: Yes, sir.
THE COURT: -- and any additives or offense
characteristics or anything like that.
THE DEFENDANT: Yes, sir.
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THE COURT: You retain that right for sure.
The second exchange took place later in the hearing as
the court turned to specifically discussing the appeal waiver:
THE COURT: Okay. Great. Also as part of the
plea agreement you agree to waive any right to
appeal the sentence I impose except for the
issue of the denial of the motion to suppress
which you have preserved. You've agreed not
to appeal the sentence that I impose if I
accept the plea agreement and impose within
those parameters. Do you understand that?
THE DEFENDANT: Can I get verification on that
aspect, your Honor?
THE COURT: Sure.
THE DEFENDANT: Based on what I asserted
earlier as far as my right to preserve the
challenge of the aggravating factors or the
sentence enhancements, those issues will still
be preserved, though, right, if they ever
become an issue?
THE COURT: They will be preserved for me. You
can argue that before me.
THE DEFENDANT: Okay.
THE COURT: But once I impose the sentence
that's between five years and eight years,
then you have no right to appeal that issue to
the Court of Appeals.
THE DEFENDANT: All right.
THE COURT: I'm just -- Mr. Shah or Mr. Dawson,
I'm just looking for in here did, in fact --
did they preserve the decision on the motion
to suppress for appellate review or no?
MR. SHAH: No, your Honor. Paragraph 12 is the
standard appellate waiver.
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THE COURT: Okay. So you've waived any right to
appeal anything about this case in most
circumstances as long as I follow the plea
agreement and sentence you between five and
eight years. Do you understand that?
THE DEFENDANT: Yes, your Honor.
Considering the transcript as a whole and taking the
district court's statements in context, we cannot say that these
exchanges require abrogation of the appeal waiver. Thompson
acknowledges that we have declined to prescribe a specific format
that the colloquy regarding the waiver must take -- thus, the
district court was not required to read the appeal waiver to
Thompson. See Teeter, 257 F.3d at 24 n.7; Staveley, 43 F.4th at
15 ("When the goal is to achieve a clear understanding, brevity
can be a plus rather than a minus."). Despite not having the plea
agreement in front of him, Thompson demonstrated detailed
knowledge of the terms of both the appeal waiver and the plea
agreement overall in his exchanges with the court, including
reciting details of the agreement from memory and asking precise
clarification questions. In response to questioning by the court,
Thompson confirmed that he had signed the plea agreement
voluntarily after thoroughly reviewing it and discussing it with
his attorney. Thompson also confirmed that he was satisfied with
his counsel's representation. And, as shown in the colloquy above,
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the court inquired specifically into the waiver of appeal rights,
as required by Teeter. 257 F.3d at 24.
We next turn to the court's mistaken statement that
Thompson could appeal the denial of his motion to suppress and
subsequent clarification that he could not appeal "in most
circumstances." We cannot say that this was a "direct
contradiction of the tenor of the waiver" when taken in the context
of the colloquy. De-La-Cruz Castro, 299 F.3d at 12. The court
quickly clarified its mistake about the motion to suppress issue,
and Thompson does not contend that he remained confused about
whether he could appeal the denial of that motion. Rather, he
focuses on the court's clarification that he had "waived any right
to appeal anything about this case in most circumstances" if the
court sentenced him between five and eight years. Advising a
defendant who has signed an agreement containing an appeal waiver
that he may appeal "in some circumstances" is not per se reversible
error. De-La-Cruz Castro, 299 F.3d at 12; see also United States
v. Gil-Quezada, 445 F.3d 33, 37 (1st Cir. 2006). As we have
previously observed, "[t]hat statement is correct in the sense
that we may entertain an appeal in order to correct a 'miscarriage
of justice' even in the face of a knowing and voluntary waiver of
appeal." De-La-Cruz Castro, 299 F.3d at 12. Thompson argues that
even if it did not constitute per se error, the confusing nature
of the colloquy in his case left uncertainty as to whether he could
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challenge aggravating factors or sentencing enhancements on
appeal. But reviewing the exchange as a whole, it is evident that
the district court explicitly told Thompson that he could challenge
those issues only before the district court. The court said, "They
will be preserved for me. You can argue that before me. . . . But
once I impose the sentence that's between five years and eight
years, then you have no right to appeal that issue to the Court of
Appeals." Thompson replied, "All right." The court's subsequent
clarification that Thompson had not preserved the motion to
suppress issue for appeal and that he had waived the right to
appeal "in most circumstances" does not contradict this earlier
explanation of Thompson's rights.
Furthermore, "[a]lthough the relevant knowledge under
Teeter is what [the defendant] knew about the appellate waiver at
the time the plea was accepted, we look to the whole record to
determine what he understood about the waiver when he entered the
plea." United States v. Villodas-Rosario, 901 F.3d 10, 18 (1st
Cir. 2018). At the sentencing hearing, the district court again
explained to Thompson that he had agreed to waive the right to
appeal given that the court imposed a sentence of eight years --
the maximum sentence provided for in the plea agreement. The court
summed up: "This, in fact, is a below-guideline-range sentence;
and, therefore, you've waived your right to appeal the sentence
that I've imposed." When the court asked Thompson's attorney
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shortly after if there was anything else, counsel took no issue
with the court's description of the appeal waiver, and Thompson
expressed no concerns about the meaning of it. This lack of
objection further supports the conclusion that Thompson understood
the terms of the waiver when entering his plea. See, e.g.,
Villodas-Rosario, 901 F.3d at 18.
In sum, this was not a case in which the court provided
broad assurances to the defendant that "directly contradicted the
tenor of the waiver provision," Teeter, 257 F.3d at 27, made a
statement that "was so misleading that it nullified [the] waiver
of appeal," United States v. Padilla-Colón, 578 F.3d 23, 28 (1st
Cir. 2009), or failed to correct a misstatement of the waiver
provisions, United States v. Pacheco, 921 F.3d 1, 3 (1st Cir.
2019). We therefore conclude that the second prong of Teeter was
met.
B.
Turning to the third prong of Teeter, Thompson argues
that it would amount to a miscarriage of justice to enforce the
appeal waiver regarding the serial number enhancement under
§ 2K2.1(b)(4)(B) because that enhancement violates the Second
Amendment.1 He does not argue that it would work a miscarriage of
This issue was only raised in a supplemental brief tendered
1
by Thompson (which we hereby accept for filing) and was not raised
in Thompson's opening brief, even though New York State Rifle &
Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), had already been
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justice to enforce the appeal waiver with respect to
§ 2K2.1(b)(6)(B), concerning the use of a firearm in connection
with another felony offense, so we find that that argument is
waived under the appeal waiver provision.
"[I]f denying a right of appeal would work a miscarriage
of justice, the appellate court, in its sound discretion, may
refuse to honor the waiver." Teeter, 257 F.3d at 25. We have
recognized that this category "is infinitely variable" and "is
more a concept than a constant," but we have nevertheless
articulated some factors to consider: "the clarity of the error,
its gravity, its character (e.g., whether it concerns a fact issue,
a sentencing guideline, or a statutory maximum), the impact of the
error on the defendant, the impact of correcting the error on the
government, and the extent to which the defendant acquiesced in
the result." Id. at 25-26 & n.9. This "exception has been applied
'sparingly and without undue generosity' and is therefore reserved
for egregious circumstances." United States v. Ortiz-Vega, 860
F.3d 20, 28 (1st Cir. 2017) (quoting De-La-Cruz Castro, 299 F.3d
at 13). For example, we have found a miscarriage of justice "when
an error of significant or constitutional dimension is clear,"
decided. Although issues not raised in a party’s opening brief
are typically waived, United States v. Mayendía-Blanco, 905 F.3d
26, 32 (1st Cir. 2018), we conclude that this issue was already
waived via the plea agreement, so we need not decide whether it
has been doubly waived.
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United States v. Del Valle-Cruz, 785 F.3d 48, 56 (1st Cir. 2015),
or where "plea proceedings were tainted by ineffective assistance
of counsel," Ortiz-Vega, 860 F.3d at 28 (quoting Teeter, 257 F.3d
at 25 n.9).
Here, Thompson argues that, under New York State Rifle
& Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), the serial number
enhancement that was applied to his sentence is unconstitutional
and that it would therefore work a miscarriage of justice to
enforce the appeal waiver. Thompson's guideline sentencing range
was increased by four levels pursuant to § 2K2.1(b)(4)(B), based
on his possession of one or more firearms with an altered or
obliterated serial number. In Bruen, the Supreme Court held that
"when the Second Amendment's plain text covers an individual's
conduct, the Constitution presumptively protects that conduct."
142 S. Ct. at 2126. For a firearm regulation covering such conduct
to survive constitutional review, "the government must demonstrate
that the regulation is consistent with this Nation's historical
tradition of firearm regulation." Id. A district court in West
Virginia subsequently applied this standard to 18 U.S.C. § 922(k),
holding that statutory provision unconstitutional insofar as it
criminalizes possession of a firearm with an altered or obliterated
serial number. United States v. Price, No. 2:22-cr-97, 2022 WL
6968457, at *2-6 (S.D. W.V. Oct. 12, 2022). Thompson argues on
appeal that the reasoning in Price similarly applies to
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§ 2K2.1(b)(4)(B), because the sentencing guideline provides for an
enhanced sentence based on similar conduct.
Setting aside the ultimate merits of the question,
Thompson's argument that enforcing the appeal waiver as to this
issue would constitute a miscarriage of justice fails largely on
the first factor discussed in Teeter: clarity. It is far from
clear that § 2K2.1(b)(4)(B) is unconstitutional. We are unaware
of any court having directly decided the constitutionality of that
sentencing enhancement, and Thompson identifies only one district
court case, Price, in which a similar criminal statute was
invalidated. Another district court recently disagreed with
Price, holding that 18 U.S.C. § 922(k) is constitutional. See
United States v. Holton, No. 3:21-CR-0482, 2022 WL 16701935, at
*3-5 (N.D. Tex. Nov. 3, 2022). Thus, with some basis, Thompson
himself acknowledges that "[t]his is a rapidly developing issue of
law." See, e.g., United States v. Rahimi, 59 F.4th 163 (5th Cir.
2023) (federal statute prohibiting possession of firearm by
someone subject to domestic violence restraining order is
unconstitutional under Bruen). Clarity, therefore, does not yet
exist. Given this lack of clarity, the district court's decision
to impose the sentencing enhancement is not the type of "egregious"
error requiring that we set aside the otherwise valid appeal
waiver.
Based on the foregoing, we dismiss Thompson's appeal.
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