United States v. Ronald Damon , 933 F.3d 269 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2444
______________
UNITED STATES OF AMERICA
v.
RONALD DAMON,
Appellant
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-06-cr-00471-001)
District Judge: Hon. Freda L. Wolfson
______________
Argued June 5, 2019
Before: JORDAN, BIBAS, and MATEY, Circuit Judges.
(Filed: August 6, 2019)
Richard Coughlin
Julie A. McGrain (Argued)
Office of the Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, New Jersey 08102
Counsel for Appellant
Craig Carpenito
Mark E. Coyne
John F. Romano (Argued)
Office of the United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
Jason M. Richardson
Office of the United States Attorney
401 Market Street
Camden, New Jersey 08101
Counsel for Appellee
______________
OPINION
______________
MATEY, Circuit Judge.
Ronald Damon signed a plea agreement with the United
States accepting responsibility for a federal crime. He served
time in custody and left prison. Now, having reentered society,
he wants a fresh start, free from further oversight by the federal
government. So Damon asked to end his term of supervised
release a few years early. He offered facts and circumstances
justifying his request, and highlighted the hardships imposed
by restrictions on his activities. But Damon’s present desires
are controlled by a past decision: his contract with the
2
government containing the terms and conditions of his guilty
plea. Because his plea agreement precludes challenges to his
sentence, and because any shortening of his supervision would
amount to a change in his sentence, we will affirm the decision
of the District Court.
I. The Proceedings Before the District Court
A. The Written Plea Agreement
The facts are not in dispute. Damon pleaded guilty to
knowingly and intentionally distributing and possessing with
intent to distribute 50 grams or more of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (as amended in
2006) and 18 U.S.C. § 2. As is customary in federal criminal
practice, the Government and Damon memorialized their
agreement in writing. The plea agreement includes a provision
stating that both parties “waive certain rights to file an appeal,
collateral attack, writ or motion after sentencing, including, but
not limited to an appeal under 18 U.S.C. § 3742 or a motion
under 28 U.S.C. § 2255.” (App. at 22.) Schedule A to the plea
agreement provides:
Ronald Damon knows that he has and, except as
noted below in this paragraph, voluntarily
waives, the right to file any appeal, any collateral
attack, or any other writ or motion, including but
not limited to an appeal under 18 U.S.C. § 3742or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the
sentencing court if that sentence falls within or
below the Guidelines range that results from the
agreed total Guidelines offense level of 33.
3
(Id. at 26.) The agreement also states that, “in addition to
imposing any other penalty on Ronald Damon, the sentencing
judge . . . pursuant to 21 U.S.C. § 841, must require Ronald
Damon to serve a term of supervised release of at least 5 years,
which will begin at the expiration of any term of imprisonment
imposed.” (Id. at 21.)
Both Damon and the Government executed the plea
agreement. Following Federal Rule of Criminal Procedure
11(b)(1), the District Judge explained the agreement, including
the maximum penalties, fines, and period of supervised release.
And as required by Federal Rule of Criminal Procedure
11(b)(1)(N), the District Court asked Damon whether he
understood that he was “giving up [his] right to file an appeal
or otherwise attack the sentence that may be imposed in this
matter” and Damon agreed. (Id. at 42–43.) A portion of their
exchange is illustrative:
The Court: Do you understand that by the terms
of the plea agreement both you and the
government have given up the right to file an
appeal or post-conviction relief under certain
circumstances that are set forth in the plea
agreement itself and in Schedule A to the plea
agreement? I referred you to those provisions
before. Do you understand that?
The Defendant: Yes.
The Court: Did you discuss with your attorney
this waiver of appeal and waiver of your right to
file for post-conviction relief?
The Defendant: Yes.
4
The Court: And are you satisfied with the
explanations that your attorney provided?
The Defendant: Yes.
The Court: And do you agree with those waivers
of appeal and waiver of your right to file for post-
conviction relief?
The Defendant: Yes.
(App. at 56–57.) The District Court found that the plea was
“knowingly and voluntarily made” and accepted the plea. (Id.
at 58–59.)
B. Damon is Sentenced According to the Plea
Having pleaded guilty, Damon faced 262–327 months’
imprisonment under the advisory Sentencing Guidelines.
Upholding its end of the deal, the Government filed a motion
for a downward departure under U.S.S.G. § 5K1.1, which the
Court weighed favorably in sentencing Damon to 144 months’
imprisonment. The District Court also imposed the required
five-year term of supervised release, a $2,000 fine, and a
special assessment of $100.
C. Damon Asks for an Early End to Supervised Release
After serving his prison term and about thirty-two
months of his sixty-month term of supervised release, Damon
sought to terminate the remainder of his supervision. The
District Court found that the waiver provision of the plea
5
agreement barred Damon’s request, and denied his application.
Damon timely appealed. 1
II. The Plain Language of the Agreement Controls
On appeal, Damon acknowledges the waiver, but argues
that it doesn’t extend to his application. The Government
disagrees and has moved for summary action to enforce the
terms of the waiver and to dismiss this appeal, or alternatively,
to affirm the District Court’s order.
A. Waiving the Right to Appeal
The parties’ dispute is narrow. Damon agrees that his
plea was both knowing and voluntary, eliminating
constitutional concerns. And he does not dispute that his plea
agreement contains a waiver, so “we must decide whether the
appellate waiver before us bars this appeal.” United States v.
Wilson, 707 F.3d 412, 414 (3d Cir. 2013). Waivers in plea
agreements are neither new nor unusual, and we have long
enforced their terms. See United States v. Khattak, 273 F.3d
557, 562 (3d Cir. 2001). But a waiver only bars an appeal that
falls inside its scope. Garza v. Idaho, 139 S. Ct. 738, 744
(2019). We will enforce an appellate waiver in a plea
agreement and decline to review the merits of Damon’s appeal
1
The District Court had subject matter jurisdiction over
Damon’s motion under 18 U.S.C. § 3231 and we have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We exercise plenary review to decide whether a
defendant’s appeal falls within the scope of a waiver provision
in a plea agreement. United States v. Goodson, 544 F.3d 529,
537, n.6 (3d Cir. 2008).
6
only “if we conclude (1) that the issues [Damon] pursues on
appeal fall within the scope of his appellate waiver and (2) that
he knowingly and voluntarily agreed to the appellate waiver,
unless (3) enforcing the waiver would work a miscarriage of
justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.
2008). Damon aims his arguments at the first step in this test
and we use familiar principles of interpretation to review.
B. Damon Identifies no Ambiguity in the Agreement
We begin by noting what Damon does not argue.
Damon states that the plea agreement bars a direct appeal of
his sentence. And he maintains that the “waiver bars an appeal
of any component of punishment imposed at the original
sentencing proceeding, including the terms and conditions of
supervised release.” (Opening Br. at 9.) Instead, he reasons that
his present motion for early termination of his supervised
release falls outside the waiver on temporal and factual
grounds, labeling it as a motion for post-sentencing relief. In
other words, Damon does not see a textual hook in the plea
agreement that would allow for a reduced term of supervised
release as part of his bargain. Rather, he sees an opening in the
logic behind the text, arguing that the agreement should best
be construed to allow a fresh examination of his progress based
on the most recent information.
Our task is one of interpretation, “guided by the ‘well-
established principle that plea agreements, although arising in
the criminal context, are analyzed under contract law
standards.’” Corso, 549 F.3d at 927 (quoting Goodson, 544
F.3d at 535 n.3) (internal quotation marks omitted). Thus, “we
begin our analysis as we would with any contract,” by
“examin[ing] first the text of the contract.” United States v.
Gebbie, 294 F.3d 540, 545 (3d Cir. 2002). “Because we apply
7
rules of contract interpretation to plea agreements, the first step
is to decide whether the plea agreement is ambiguous or
unambiguous. A contract is ambiguous if it is capable of more
than one reasonable interpretation.” Id. at 551 (internal
quotation marks omitted).
In the agreement, Damon waived the right to file “any
appeal . . . which challenges the sentence imposed by the
sentencing court if that sentence falls within or below the
Guidelines range that results from the agreed total Guidelines
offense level of 33.” (App. at 26.) Damon’s sentence fell within
this Guidelines range. So the waiver governs if the “sentence
imposed” on Damon includes the term of his supervised release
and if this appeal “challenges” that sentence. (Id.)
1. The Term “Sentence” in Damon’s Plea Agreement
Refers to All Penalties
We focus not on intent, but on words, as “the language
of a waiver, like the language of a contract, matters greatly.”
Goodson, 544 F.3d at 535. And the word “sentence” is
commonly understood to encompasses all penalties imposed
on a defendant, which can include penalties beyond
imprisonment. See THE AMERICAN HERITAGE DICTIONARY OF
THE ENGLISH LANGUAGE 1302, 1597 (5th ed. 2018) (defining
“sentence” as “[t]he penalty imposed by a law court or other
authority upon someone found guilty of a crime or other
offense” and defining “penalty” as “[a] punishment imposed
for a violation of law.”); WEBSTER’S NEW WORLD COLLEGE
DICTIONARY 1180, 1323 (5th ed. 2018) (defining “sentence” as
“a decision or judgment, as of a court; esp., the determination
by a court of the punishment of a convicted person” or
“punishment itself” and defining “punishment” as “a penalty
imposed on an offender for a crime or wrongdoing”); BLACK’S
8
LAW DICTIONARY 1428, 1569 (10th ed. 2014) (defining
“sentence” as “[t]he judgment that a court formally pronounces
after finding a criminal defendant guilty; the punishment
imposed on a criminal wrongdoer” and defining “punishment”
as “[a] sanction — such as a fine, penalty, confinement, or loss
of property, right, or privilege — assessed against a person
who has violated the law.”). The ordinary meaning of
“sentence” can only reasonably be read to include all forms of
punishment or penalties imposed on a defendant. By extension,
Damon’s “sentence” must be read to include the term of his
supervised release, bringing Damon’s challenge within the
scope of the bargained-for waiver.
The structure of the plea agreement confirms this
common understanding of “sentence.” Under the heading
“Sentencing,” the plea agreement provides that the sentencing
judge will impose penalties that include, at a minimum: (1)
imprisonment; (2) a fine; (3) forfeiture; and (4) a term of
supervised release. (App. 20–21.) The plea agreement also
made clear that “pursuant to 21 U.S.C. § 841,” the sentencing
judge “must require Ronald Damon to serve a term of
supervised release of at least 5 years, which will begin at the
expiration of any term of imprisonment imposed.” (Id. at 21.)
Section 841(b)(1)(A), in turn, states that “any sentence under
this subparagraph shall . . . impose a term of supervised release
of at least 5 years in addition to such term of imprisonment.”
Construing the language of the plea agreement in a “manner
that gives meaning to each provision,” as we must, the term
“sentence” unambiguously includes the imposition of a term of
supervised release. United States v. Floyd, 428 F.3d 513, 516
(3d Cir. 2005).
Reading “sentence” to include a term of supervised
release also agrees with our prior holdings. In Goodson, we
9
held that the defendant’s appellate waiver “encompassed his
right to appeal the conditions of his supervised release.” 544
F.3d at 538. Construing the appellate waiver presented, we
rejected the defendant’s contention “that the waiver’s use of
the term ‘sentence’ should be construed to mean only the term
of incarceration” and held that “the duration, as well as the
conditions of supervised release are components of a
sentence.” Id. at 537–38. “Under chapter 227 of the Federal
Crimes Code, the period of incarceration is but one component
of a sentence. Other components may be probation under §
3561, supervised release under § 3583, a fine under § 3571,
and/or restitution under § 3556.” Id. at 537. Indeed, Section
3583(a) provides that a court “may include as a part of the
sentence a requirement that the defendant be placed on a term
of supervised release after imprisonment.” Id. (quoting 18
U.S.C. § 3583(a)) (emphasis in original). Thus, we concluded
that “the text of the waiver . . . establishes that the term
‘sentence’ as used in [defendant’s] appellate waiver applies to
not only the period of incarceration that will be imposed, but
also any other component of punishment.” Id. at 538; see also
United States v. Island, 916 F.3d 249, 252 (3d Cir. 2019)
(“[T]he supervised release term constitutes part of the original
sentence”) (internal quotations omitted); Wilson, 707 F.3d at
414 (“the word ‘sentence’ in a broad appellate waiver . . .
includes the terms and conditions of supervised release and,
therefore, bars appeals challenging those terms and
conditions.”). The “sentence imposed” on Damon likewise
encompassed the duration of his supervised release. 2
2
Our reading of the “sentence imposed” on Damon also
tracks the Supreme Court’s understanding that supervised
10
2. Damon’s Waiver Bars “Challenges” to the Term of his
Supervised Release
In the agreement, Damon waived the right to file any
motion or appeal that “challenges the sentence imposed.”
(App. at 26.) Damon seeks to evade this language by arguing
that his motion is not a challenge to his sentence, but a motion
filed in a separate chronological phase and in a different
proceeding. But this argument is unsupported by the text of the
plea agreement and by any sound understanding of what is
included in a sentence. Supervised release is, as just explained,
part of the sentence that Damon received.
The verb “challenges” in the legal context is generally
understood to mean “to dispute or call into question.” BLACK’S
LAW DICTIONARY 279 (10th ed. 2014); see also THE
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE 307 (5th ed. 2018) (defining “challenge” as a
“formal objection” or a legal action “testing the validity of an
action, particularly by the government.”); WEBSTER’S NEW
WORLD COLLEGE DICTIONARY 248 (5th ed. 2018) (defining
“challenge” as “a calling into question; a demanding of proof
[or] explanation.”). Damon’s motion does just that,
questioning his original sentence by seeking to shorten the term
release is just one component of a sentence. See United States
v. Haymond, 139 S. Ct. 2369, 2379 (2019) (plurality opinion)
(“[a]n accused’s final sentence includes any supervised release
sentence he may receive[.]”); Mont v. United States, 139 S. Ct.
1826, 1834 (2019) (“Supervised release is a form of
punishment that Congress prescribes along with a term of
imprisonment as part of the same sentence.”).
11
of his supervised release. By its very nature, it is a challenge to
the sentence imposed.
Although this Court has not addressed the term
“challenges” in the context of a motion to terminate supervised
release brought under § 3583(e)(1), the Sixth Circuit decision
in United States v. Scallon, 683 F.3d 680 (6th Cir. 2012) is
instructive. There, the Sixth Circuit held that “[t]he sorts of
challenges [defendant] brought in his § 3583(e)(2) motion
could have been raised on direct appeal or as part of a collateral
attack, and [defendant] unequivocally waived both of those
options in his written plea agreement.” Scallon, 683 F.3d at
683–84. The Sixth Circuit therefore held that “a defendant’s
appeal from the denial of his § 3583(e)(2) motion falls within
the scope of a broadly-worded appeal waiver like [the
defendant’s].” Id. at 684. Likewise, the “Sentencing” portion
of Damon’s plea agreement noted the requirement that he serve
“a term of supervised release of at least 5 years.” (App. at 21.)
He cannot now challenge the term of his supervised release by
reframing it as a post-sentence modification.
C. Damon is Bound by His Bargain with the Government
As with any contract, Damon and the Government are
held to the negotiated terms of their agreement. To interpret the
waiver as Damon urges would stretch its ordinary meaning
beyond normal usage. So “we have no difficulty in holding a
defendant to the plea agreement [when] he seeks the benefits
of it without the burdens.” United States v. Williams, 510 F.3d
416, 422 (3d Cir. 2007) (internal quotations and alterations
omitted). Thus, “we must construe the phrase ‘any appeal . . .
which challenges the sentence imposed’ to mean what it
plainly states” United States v. Banks, 743 F.3d 56, 59 (3d Cir.
2014), and hold that Damon’s challenge to the duration of his
12
supervised release falls within the scope of his appellate
waiver.
Damon knowingly and voluntarily entered into a plea
agreement with the government that provided him with certain
undeniable benefits, most notably the Government’s motion
for a downward departure from the Sentencing Guidelines.
Damon was sentenced to 144 months imprisonment, far lower
than the 262 to 327 months of imprisonment he faced under the
Guidelines. In return, the Government bargained for and
received a guilty plea and waiver of “the right to file any
appeal, any collateral attack, or any other writ or motion . . .
which challenges the sentence imposed by the sentencing
court.” (App. at 26.) We find no issue that presents a
miscarriage of justice. As we have cautioned, a contrary
conclusion “would permit an end run around the waiver.”
Wilson, 707 F.3d at 415, n.2 (distinguishing between a
defendant’s ability to appeal a later-imposed sentence
modification sought by the government from an appeal brought
by the defendant to modify the terms of supervised release
imposed as part of the original sentence). 3 So we will affirm
the decision of the District Court and grant the Government’s
motion to the extent the District Court’s order is affirmed.
3
The Government also raises an important point: it is
unclear that any reduction of supervised release would be
appropriate because 18 U.S.C. § 841(b)(1)(A) imposes a
mandatory minimum term of supervision. But we do not reach
this issue. See United States v. Gwinnett, 483 F.3d 200, 206 (3d
Cir. 2007).
13