United States v. St. Anne Narcisse ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 25, 2005
No. 03-16489 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00014-CR-T-23-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ST. ANNE NARCISSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 25, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
St. Anne Narcisse appeals her conviction and 87-month sentence, imposed
after she pled guilty, pursuant to a written plea agreement, to distributing 50 grams
or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal,
Narcisse argues that her written plea agreement is unenforceable because: (1)
during the plea colloquy, the magistrate judge misled her into believing that the
district court had unbridled discretion to depart below the Sentencing Guidelines
range for any reason, and (2) the Supreme Court’s subsequent decision in United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which
made the Guidelines advisory, destroyed the essence of the plea agreement.1
Upon thorough review of the record, with particular attention to the
transcripts of the plea colloquy and sentencing hearings, and careful review of the
parties’ briefs, we affirm in part and dismiss in part.
For the first time on appeal, Narcisse claims that the written plea agreement
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As for Narcisse’s Booker challenge to the district court’s computation of her offense
level, her written plea agreement contained a valid sentence appeal waiver that precludes her from
challenging her sentence based on Booker. Our de novo of the record reveals that Narcisse
knowingly and voluntarily waived her right to appeal her sentence. United States v. Benitez-Zapata,
131 F.3d 1444, 1446 (11th Cir. 1997) (reviewing whether a defendant knowingly and voluntarily
waived her right to appeal her sentence de novo). We have held that “the right to appeal a sentence
based on Apprendi/Booker grounds can be waived in a plea agreement.” United States v. Rubbo,
396 F.3d 1330, 1335 (11th Cir. 2005), pet. for cert. filed, (U.S. June 7, 2005) (No. 04-1663); see
also United States v. Grinard-Henry, 399 F.3d 1294, 1295-96 (11th Cir.), cert. denied, 125 S. Ct.
2279 (2005) (concluding that “the general appeal-waiver language of the plea agreement [was] broad
enough to include an Apprendi/Blakely/Booker claim”). Like in Grinard-Henry, Narcisse’s
Booker challenge does not fit within any of the plea agreement’s enumerated exceptions to the
appeal waiver. Thus, we dismiss the appeal as to the sentencing issue Narcisse raises.
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should not be enforced because, at the plea colloquy, the magistrate judge failed to
include the qualifying language “in some circumstances” when describing the
district court’s ability to grant a downward departure. Narcisse asserts that this
omission led her to believe that the district court had unbridled discretion to depart
below the Guideline range for any reason.
When a defendant fails to object to a Fed. R. Crim. P. 11 violation in the
district court, we review the district court’s compliance with Rule 11 for only plain
error. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). We will
correct plain error where (1) there is an error; (2) the error is plain or obvious; (3)
the error affects the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) the error seriously affects the fairness, integrity, or public
reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304,
307 (11th Cir. 1996). A defendant seeking reversal of his conviction after a guilty
plea, on the basis that the court committed “plain error under Rule 11, must show a
reasonable probability that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, ____, 124 S. Ct. 2333, 2340,
159 L. Ed. 2d 157 (2004).
A court accepting a plea of guilty must comply with Rule 11, and, in
particular, address the three “core concerns” by ensuring that (1) the defendant
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understands the nature of the charges; (2) the defendant understands the
consequences of her plea; and (3) the guilty plea is free from coercion. See United
States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996). “The nature of a Rule 11
inquiry necessarily varies from case to case, and there is no one mechanical or
precise juncture to which a district judge must conform in advising a defendant of
the nature of the charges to which he is pleading guilty.” United States v. James,
210 F.3d 1342, 1344 (11th Cir. 2000) (quotation omitted). Indeed, Rule 11 does
not require the district court to read the specified items in haec verba, and any
variance or deviation from the procedures that the rule mandates that does not
affect a defendant’s substantial rights constitutes harmless error. United States v.
Hernandez-Fraire, 208 F.3d 945, 950 (11th Cir. 2000). Generally, we will uphold
a plea colloquy, even one involving a technical violation Rule 11, so long as the
district court adequately addressed the three core concerns. Id.As for Narcisse’s instant argument, according to Fed. R. Crim. P.
11(b)(1)(M), before accepting a guilty plea, a district court must inform the
defendant of, and determine that the defendant understands, “the court’s obligation
to apply the Sentencing Guidelines, and the court’s discretion to depart from those
guidelines under some circumstances.” Our review of the plea colloquy reveals
that the magistrate judge specifically advised Narcisse that she would be sentenced
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pursuant to the Sentencing Guidelines and her plea agreement with the
government. Notably, the plea agreement, which Narcisse signed (and initialed at
the bottom of each page), specifically informed Narcisse that the district court had
the discretion to depart from the Guidelines “in some circumstances.” Cf. United
States v. Jones, 143 F.3d 1417, 1420 (11th Cir. 1998) (noting that this Court has
consistently considered written plea agreements to be part of the record of the
Rule 11 hearing). On this record, we can find no error, let alone plain error,
resulting from the magistrate judge’s discussion of Narcisse’s sentence at the plea
colloquy.
We are likewise unpersuaded by Narcisse’s argument that Booker rendered
the plea agreement unenforceable. Because a defendant may not rely on a
subsequent unanticipated change in the law to void an otherwise valid guilty plea,
Narcisse’s plea agreement is enforceable despite the Supreme Court’s subsequent
decision in Booker. Cf. United States v. Sanchez, 269 F.3d 1250, 1283-85 (11th
Cir. 2001) (en banc) (applying Brady v. United States, 397 U.S. 742, 90 S. Ct.
1463, 25 L. Ed. 2d 747 (1970), to reject the defendants’ arguments that their guilty
pleas had been rendered involuntary and unknowing in light of the Supreme
Court’s subsequent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000)). “[A] voluntary plea of guilty intelligently made in
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light of the then applicable law does not become vulnerable because later judicial
decisions indicate that the plea rested on a faulty premise.” Brady, 397 U.S. at
757; see also United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (holding that
defendant’s plea was voluntary notwithstanding the effect of Booker, as “the
possibility of a favorable change in the law occurring after a plea is one of the
normal risks that accompany a plea”). Thus, the Booker decision did not render
Narcisse’s plea involuntary.
In sum, we find no reversible error and affirm Narcisse’s conviction.
Pursuant to the valid appeal-waiver provision in the plea agreement, we dismiss
Narcisse’s sentencing claim.
AFFIRMED IN PART, DISMISSED IN PART.
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