United States v. Davis ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1018
UNITED STATES,
Appellee,
v.
RAYMOND DAVIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
William S. Maddox on brief for appellant.
Margaret D. McGaughey, Appellate Chief and Thomas E. Delahanty
II, United States Attorney, on motion for summary affirmance for
appellee.
January 18, 2011
Per Curiam. This is Raymond Davis's direct appeal from
his 84-month sentence, which included a downward departure for
substantial assistance below the otherwise applicable 120-month
mandatory minimum. The government has moved to dismiss the appeal
as barred by an appeal waiver in Davis's plea agreement, under
which Davis agreed to waive his right to appeal as long as his
sentence was not longer than 120 months. For the reasons discussed
below, we agree that the appeal waiver precludes this appeal and
therefore grant the government's motion and summarily dismiss the
appeal.
Ordinarily, the standards for assessing the
enforceability of an appeal waiver are those set forth in United
States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001).1 Under those
standards, presentence waivers of appeal are enforceable if the
waiver was "knowing" and "voluntary" and if enforcing it would not
result in a "miscarriage of justice." Id. at 24-25.
1
We have held that where, as here, a defendant did not object
in the district court to the sufficiency of that court's
explanation of an appeal waiver, appellate review of that issue is
under the demanding plain-error standard. Borrero-Acevedo, 533
F.3d 11, 13 (1st Cir.), cert. denied, 129 S. Ct. 587 (2008).
However, where, as is also true here, the government does not
invoke that standard in its discussion of the appeal waiver, we
have continued to apply the Teeter standards without the plain-
error overlay. See United States v. Edelen, 539 F.3d 83, 85 n.1
(1st Cir.), cert. denied, 129 S. Ct. 427 (2008); United States v.
Chandler, 534 F.3d 45, 49 n.3 (1st Cir. 2008). We therefore apply
the Teeter standards here. But, because we see no error, plain or
otherwise, in the district court's explanation of the appeal
waiver, the standard of review is immaterial to our disposition of
this case.
-2-
Davis's sole argument against enforcing the appeal waiver
is that the waiver was unknowing because he did not understand what
factors the court would apply in determining the extent of any
downward departure for substantial assistance.2 In adjudicating
such a claim, we evaluate whether the written plea agreement
"contains a clear statement elucidating the waiver and delineating
its scope" and whether the district court "inquire[d] specifically
at the change-of-plea hearing into any waiver of appellate rights."
Id. at 24; see also Fed. R. Crim. P. 11(b)(1)(N) (requiring such an
inquiry).
Davis makes no argument that the written appeal waiver
was unclear. Nor does he find fault with the district court's
explanation of that waiver at the change-of-plea hearing. Rather,
his argument focuses exclusively on Davis's purported lack of
understanding that the court would not apply the factors contained
in 18 U.S.C. § 3553(a) in determining the length of the downward
departure for substantial assistance.
Any misunderstanding in that regard cannot be attributed
to the district court's lack of explanation, either at the change-
of-plea hearing or at sentencing. At the change-of-plea hearing,
there was no occasion for the court to explain how it would
2
Although he alludes to the "manifest injustice" prong of the
Teeter standard in his statement of the standard of review, he
makes no argument that enforcing the waiver in this case would be
manifestly unjust.
-3-
determine the extent of any downward departure for substantial
assistance, since, at that point, the government had not moved for
such a departure, and the parties' cooperation agreement expressly
stated that the government was not required to do so. In the
absence of such a motion or any other basis for determining what
Davis's sentence was likely to be, the court explained, in general
terms, that it would calculate the guideline range but might depart
or vary from that range and confirmed that Davis understood that
explanation. Nothing more was required. See Fed. R. Crim. P.
11(b)(M) (requiring the court "to inform the defendant of, and
determine that the defendant understands . . . the court's
obligation to calculate the applicable sentencing-guideline range
and to consider that range, possible departures under the
Sentencing Guidelines, and other sentencing factors under
§ 3553(a)").
At sentencing, the court made perfectly clear that it
would not consider the section 3553(a) factors in determining the
extent of the downward departure.3 It also clearly explained
Davis's appeal waiver and ascertained that Davis understood it.
3
The court's conclusion that it could not do so was correct.
See United States v. Poland, 562 F.3d 35, 41 (1st Cir. 2009);
United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002).
Therefore, any argument that justice requires overlooking the
appeal waiver to reach Davis's argument to the contrary--the sole
substantive argument made on appeal--would be unavailing. See
United States v. Nguyen, 618 F.3d 72, 76 (1st Cir.) (holding that
where there was no error, there was "a fortiori, no miscarriage of
justice"), cert. denied, 131 S. Ct. 548 (2010).
-4-
Davis has thus failed to show that the appeal waiver was
unknowing and therefore unenforceable. Accordingly, the appeal is
summarily dismissed. See 1st Cir. R. 27.0(c).
-5-