United States v. Blinn, Edwin W. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2976
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWIN W. BLINN, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 126—David F. Hamilton, Judge.
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ARGUED FEBRUARY 8, 2007—DECIDED JUNE 13, 2007
____________
Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Edward Blinn, Jr., owner of
Blinn Auto Sales, sold five cars to members of a drug-
trafficking organization to assist in concealing the pro-
ceeds of the group’s marijuana sales. In exchange for
his assistance, Blinn was paid $2000 to $5000 per car.
Blinn’s side business did not go unnoticed, and on October
6, 2004, a grand jury returned a superseding indict-
ment charging him with conspiring to launder monetary
proceeds (Count Four) and laundering the monetary
proceeds of the unlawful distribution of marijuana (Count
Five). See 18 U.S.C. §§ 1956(a)(1)(B)(i) and (a)(2). Blinn
negotiated a plea agreement with the government pursu-
ant to Federal Rules of Criminal Procedure 11(c)(1)(A) and
2 No. 06-2976
11(c)(1)(C) and pleaded guilty to Count Four of the indict-
ment; Count Five was dismissed. The agreement called
for a sentence of twelve to twenty months’ imprisonment,
which was well below the statutory maximum of twenty
years, see 18 U.S.C. § 1956(a)(1), but it was silent as to
any term of supervised release. The district court ac-
cepted the plea and was bound by the sentencing recom-
mendation contained in the plea agreement. See Fed. R.
Crim. P. 11(c)(1)(C) (“[T]he plea agreement may specify
that an attorney for the government will . . . agree that
a specific sentence or sentencing range is the appropri-
ate disposition of the case, [and] such a recommendation
or request binds the court once the court accepts the plea
agreement . . . .”).
Blinn was ultimately sentenced to sixteen months’
imprisonment, ordered to pay a fine of $40,000, and placed
on supervised release for three years.1 In addition to
these terms, the district court ordered, as a condition of
the supervised release, that Blinn be confined to his home
with electronic monitoring for twelve months, except for
purposes of employment and other activities approved
by Blinn’s probation officer. Blinn did not object to the
stated terms of his sentence before it was imposed or move
to withdraw his plea agreement.
He now appeals, arguing that his sentence of sixteen
months’ imprisonment to be followed by twelve months of
home confinement violates the terms of his plea agree-
ment by exceeding the high end of the sentencing range
set forth in his plea agreement by four months. In making
this argument, Blinn directs us to section 5F1.2 of the
1
Section 5D1.1(a) of the United States Sentencing Guidelines
(2005) advises the district courts to impose a period of super-
vised release to follow a defendant’s term of imprisonment
when that term is greater than one year.
No. 06-2976 3
United States Sentencing Guidelines, which advises that
home detention may be imposed as a condition of probation
or supervised release, “but only as a substitute for impris-
onment.” This provision, Blinn contends, prevents the
district court from ordering him to a period of home
detention that, when combined with his actual term of
imprisonment, exceeds the maximum sentence of twenty
months’ imprisonment provided for in his plea agreement.
He maintains that his position finds support in authority
from the Second and Fifth Circuits. See United States v.
Ferguson, 369 F.3d 847, 850-52 (5th Cir. 2004) (finding
that the district court exceeded the two-year statutory
maximum term of incarceration when it sentenced the
defendant to twenty-three months’ imprisonment and six
months of home detention); United States v. Leaphart,
98 F.3d 41, 43 (2d Cir. 1996) (noting that because the
magistrate judge had sentenced the defendant to the
statutory maximum term of one year of imprisonment, she
could not also subject him to home detention during his
supervised release). We note that, unlike these cited cases,
Blinn’s sentence of sixteen months of imprisonment
combined with his twelve months of home confinement
did not exceed the applicable statutory maximum of
twenty years. See 18 U.S.C. § 1956(a)(1).
However, we need not entertain the merits of this
appeal because of the following waiver provision in Blinn’s
plea agreement:
Blinn expressly waives his right to appeal on any
ground his conviction of the offense charged in
Count One of the Superseding Indictment. Blinn
also expressly waives his right to contest or seek
review of the sentence on appeal on any ground,
including the right to appeal the sentence conferred
by Title 18, United States Code, Section 3742.
Plea Agmt. at 3-4 (emphasis added). We will enforce a plea
agreement’s appellate waiver if its terms are clear and
4 No. 06-2976
unambiguous and the record shows that the defendant
knowingly and voluntarily entered into the agreement.
United States v. Jemison, 237 F.3d 911, 917 (7th Cir.
2001).
Blinn contends first that the terms of his waiver were
neither clear nor unambiguous because it refers to a
count that was not part of the guilty plea or plea agree-
ment (Count One). The waiver provision’s reference to
Count One instead of Count Four, however, is no more
than a scrivener’s error that appears to be the result of
the transcription of an incorrect number. The plea agree-
ment begins by acknowledging that “Blinn will enter a
plea of guilty to Count Four” and goes on to make six
additional references to this count as the appropriate
offense charged. At the change of plea hearing, Blinn
indicated his understanding that he had been charged
in Count Four of the superseding indictment with con-
spiracy and that he agreed to plead guilty to that count. In
addition, at no point during the proceedings did Blinn
express any confusion as to whether the appellate
waiver covered his conviction under Count Four. In this
context, we are hard-pressed to find that a single typo-
graphical error in Blinn’s plea agreement rises to the
level of ambiguity that warrants disregarding Blinn’s
waiver of his right to appeal.
Next, Blinn urges that his appeal be allowed to proceed
despite any waiver on his part because, he argues, he did
not get the “benefit of his guaranteed bargain.” But, the
terms of the plea agreement and the transcript of the
proceedings show that Blinn received exactly what he
bargained for—a term of imprisonment not to exceed
twenty months. The agreement plainly states, “should
the Court accept this plea agreement, Blinn will be
sentenced to a sentence within the range of 12 to 20 months’
imprisonment on Count Four . . . .” Plea Agmt. at 2
(emphasis added). During the plea colloquy, Blinn also
No. 06-2976 5
confirmed his understanding that if the district court
accepted the plea agreement, it was committed “to giving
[Blinn] a sentence that is at least 12 months in prison, but
no more than 20 months in prison [.]” Change of Plea Tr.
at 9 (emphasis added). At Blinn’s sentencing hearing,
this range of imprisonment was repeated multiple times
by the judge and the government’s attorney before Blinn’s
sentence was finally imposed.
It is apparent from the above discussion that the
parties bound by the plea agreement—Blinn, the govern-
ment, and the district court per Rule 11(c)(1)(C)—were all
in agreement that Blinn, in exchange for pleading guilty
to Count Four, would serve a sentence between twelve
and twenty months in prison. In addition, there was no
question that the sentencing judge would set the terms of
Blinn’s supervised release. Because the plea agreement
made no recommendation as to this aspect of Blinn’s
sentence, during the plea colloquy, the sentencing judge
sought and received Blinn’s acknowledgment that it
was within the judge’s discretion to decide the length
and conditions of the supervised release. See id. In addi-
tion, as we noted earlier, though given the opportunity,
Blinn made no objections to the district court’s condi-
tions of his supervised release before it was imposed.
Therefore, Blinn’s argument that he was somehow de-
prived of the benefit of his bargain provides no basis for
us to make an exception to his appellate waiver and
consider the merits of his case.
Accordingly, Blinn’s appeal is DISMISSED.
6 No. 06-2976
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-13-07