United States v. Wallace , 160 F. App'x 382 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit December 22, 2005
_____________________ Charles R. Fulbruge III
Clerk
No. 04-60320
consolidated with No. 04-60331
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID WALLACE
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
(2:01-CR-8-2)
Before JONES, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant David Wallace was indicted on April 3, 2001 for
possession of counterfeit currency in violation of 18 U.S.C. § 472.
He was released on bail, and he subsequently absconded and failed
to appear for his change of plea hearing. On April 10, 2003,
Wallace was apprehended while robbing a bank, and he was indicted
two weeks later for bank robbery in violation of 18 U.S.C.
§ 2113(a) and (d), brandishing a firearm during and in relation to
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the robbery in violation of 18 U.S.C. § 924(c)(1), and aiding and
abetting with respect to both charges in violation of 18 U.S.C.
§ 2. The aiding and abetting charges were later dropped.
After originally pleading not guilty to the charges against
him, Wallace agreed to plead guilty to both indictments pursuant to
the terms of a written Memorandum of Understanding (“MOU”). The MOU
provided that if Wallace plead guilty to all three counts contained
in the two indictments, the Government would recommend a sentence
in the lower ten percent of the sentencing range calculated by the
court for the counterfeiting and bank robbery charges. It further
provided that the Government would recommend an additional one-
level downward adjustment for acceptance of responsibility should
Wallace otherwise qualify for a two-level downward adjustment for
acceptance of responsibility on the bank robbery charge. The MOU
also contained a waiver of the right to appeal the sentence or
contest the conviction or sentence in any post-conviction
proceeding under 28 U.S.C. § 2255, a merger provision indicating
that there were no promises external to the plea agreement, and a
statement that the defendant expressly acknowledged “no reliance
upon anyone’s calculation of a particular guideline range for the
offenses constituting [the] plea.”
On October 29, 2003, the district court judge read Wallace the
requisite plea admonishments before accepting his guilty plea as to
2
both indictments.1 Sentencing was set for early 2004. At
sentencing, there was a discussion regarding whether Wallace was
eligible for a downward adjustment for acceptance of responsibility
on the bank robbery charge.2 The district court agreed with the
recommendation of the presentence report (“PSR”) and the probation
officer that U.S.S.G. § 1B1.1’s grouping requirement had the effect
of preventing the court from giving Wallace any downward adjustment
for acceptance of responsibility absent extraordinary
circumstances. The court stated that it did not find extraordinary
circumstances in Wallace’s case and refused to accept defense
counsel’s argument that it should group the charges in the way
defense counsel and the U.S. Attorney had when estimating Wallace’s
offense level during plea bargaining, a grouping that would have
allowed a three-level downward adjustment for acceptance of
responsibility. The U.S. Attorney conceded that the Government had
thought the defendant would get a downward adjustment, stating “I
would have to defer to probation as for what is the required way.
1
Specifically, the judge asked Wallace (1) whether he
understood that it was the judge who would determine what the
appropriate sentencing guideline was, regardless of what
Wallace’s attorney or the Government might have told him; and (2)
whether he understood that a defendant normally has a right to
appeal and that under the terms of the plea agreement Wallace was
giving up that right. Wallace answered both questions in the
affirmative. The judge also asked Wallace whether there were any
side agreements or promises made that were not contained in the
plea agreement, to which Wallace responded no.
2
Wallace had already conceded that he was not eligible for a
downward adjustment on the counterfeiting charge because he had
absconded after the court released him on bail.
3
Although it was an inducement to [Wallace], I’m sure, to enter his
plea that he thought that he was going to get that three levels on
the bank robbery.” After hearing Wallace’s final statement — during
which Wallace complained that he thought acceptance of
responsibility was automatic and asked to withdraw his guilty plea
— the court reminded Wallace that when he plead guilty, he
acknowledged that it was the judge who would determine his sentence
under the guidelines. The court then sentenced Wallace to
concurrent sixty-five month terms of imprisonment for the
counterfeiting and bank robbery charges and a consecutive eighty-
four month term of imprisonment for the brandishing a firearm
charge. Final judgment was entered and Wallace timely appealed and
moved for consolidation of the cases.
This Court granted Wallace’s motion for consolidation and now
considers the three interrelated issues on appeal: (1) whether the
waiver of appeal in the plea agreement should be enforced; (2)
whether Appellant-Wallace was induced to change his plea from not
guilty to guilty by promises made outside of the plea agreement
such that the district court erred in refusing to allow Wallace to
withdraw his guilty plea; and (3) whether Booker/Fanfan should
allow reversal for resentencing. For the reasons stated below, we
DISMISS Wallace’s appeal.
I.
The Government asks us to dismiss this appeal because of the
waiver provision in the plea agreement. Whether a defendant’s
4
waiver of appeal should be enforced is a question of law. Questions
of law are reviewed de novo. United States v. Farmigoni, 934 F.2d
63, 65 (5th Cir. 1991). This Court will enforce a waiver when a
defendant knowingly and voluntarily waives his right to appeal. See
United States v. Baymon, 312 F.3d 725, 726 (5th Cir. 2002); United
States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); United
States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). However, if
the Government has breached or elected to void a plea agreement,
“the defendant is necessarily released from an appeal waiver
provision contained therein.” United States v. Gonzalez, 309 F.3d
882, 886 (5th Cir. 2002). Because the record indicates that Wallace
knowingly and voluntarily waived his right to appeal, resolution of
this issue turns on whether, as Wallace contends, the Government
breached the plea agreement by failing to keep promises made in
association with it, as discussed below.
Wallace’s main argument on appeal is that the district court
erred in refusing to allow him to withdraw his guilty plea because
he was induced into pleading guilty by promises made outside of the
plea agreement that he would automatically, by virtue of pleading
guilty, receive a three-level downward adjustment for acceptance of
responsibility.3 Wallace did not make this objection in district
court; therefore, we review for plain error. United States v.
3
Wallace does not argue that the written terms of the plea
agreement were breached, just promises made in association with
the plea agreement.
5
Munoz, 408 F.3d 222, 226 (5th Cir. 2005); United States v. Brown,
328 F.3d 787, 790 (5th Cir. 2003). Although Wallace is correct that
“evidence of discussions surrounding the negotiations of the
written agreement may establish the existence of a promise,” which
if not kept, may give rise to a breach, United States v. Kirk, 70
F.3d 791, 793 (5th Cir. 1995), the record contains no evidence of
a promise that Wallace would receive a three-point downward
adjustment, and Wallace’s testimony at the Rule 11 hearing,
together with the written plea agreement, indicate that no such
promise was made, United States v. Corbett, 742 F.2d 173, 175-77
(5th Cir. 1984). Accordingly, the district court did not commit
error, plain or otherwise, in refusing to allow Wallace to withdraw
his guilty plea, Corbett, 742 F.2d at 175-77, and because we find
that neither the written terms of nor any promises external to the
plea agreement were breached, we will enforce the waiver of appeal
provision in that document.
Finally, Wallace argues that because the district court
applied the sentencing guidelines in a mandatory fashion when
determining the adjustment for acceptance of responsibility, this
Court should reverse and remand for resentencing under
Booker/Fanfan. Because Wallace is bound by the waiver of appeal in
his plea agreement, as discussed above, we do not have jurisdiction
to consider this issue. United States v. Burns, No. 04-11357, ___
F.3d ___, 2005 WL 3388548, at *7 (5th Cir. Dec. 13, 2005).
II.
6
Accordingly, Wallace’s appeal is DIMISSED.
7