United States v. Carl Stuber ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1982
___________________________
United States of America
Plaintiff - Appellee
v.
Carl Stuber
Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: April 12, 2021
Filed: June 11, 2021
[Unpublished]
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
After pleading guilty to two counts of transmitting a threatening
communication in interstate commerce, the district court1 sentenced Carl Stuber to
72 months imprisonment. Stuber appeals his sentence, arguing that the district court
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
violated his due process rights based on its finding that he did not suffer from a
mental disorder at the time of the offense conduct and committed procedural error
by failing to explain the sentence and by relying on clearly erroneous facts in
sentencing. Concluding that Stuber’s appeal is barred by the appeal waiver
contained in his plea agreement, we dismiss the appeal.
Between 2018 and 2019, Stuber made harassing and threatening calls to the
bank in Iowa which was the trustee of the trust fund of which Stuber was the
beneficiary. Unhappy with his inability to withdraw funds from the trust account,
Stuber made numerous threats to bank employees, including threats to kill
employees and blow up the bank. Stuber also made threats against his father, his
mother, his former girlfriend and mother of his children, and his fiancée. In
September 2019, Stuber was indicted on one count of transmitting an extortionate
communication in interstate commerce in violation of 18 U.S.C. § 875(d) and three
counts of transmitting a threatening communication in interstate commerce in
violation of 18 U.S.C. § 875(c).
On November 12, 2019, Stuber pled guilty to two counts of transmitting a
threatening communication in interstate commerce pursuant to a written plea
agreement. The plea agreement contained an express “Waiver of Appeal” provision,
which states:
After conferring with defendant’s attorney and after being advised of
defendant’s appeal rights, defendant knowingly and voluntarily waives
defendant’s right to appeal the conviction and the sentence imposed.
Defendant also waives the right to file post-conviction relief actions,
including actions pursuant to 28 U.S.C. § 2255, 28 U.S.C. § 2241,
coram nobis, and motions to reconsider or reduce defendant’s sentence.
Should the United States Sentencing Commission and/or Congress in
the future amend the Sentencing Guidelines to lower the guideline
range that pertains to defendant’s offenses and explicitly make such an
amendment retroactive, the government agrees that it will not assert this
waiver as a bar to defendant filing a motion with the district court
pursuant to 18 U.S.C. § 3582(c)(2). However, if defendant files such a
-2-
motion, the government reserves the right to oppose the motion on any
other grounds, and it reserves the right to assert this waiver as a bar to
an appeal from the district court’s decision regarding the motion.
Defendant retains the right to appeal or contest defendant’s sentence in
the following limited circumstances: (1) if the sentence is not in
accordance with this plea agreement; (2) if the sentence imposed
exceeds the maximum statutory penalty; and (3) if the sentence is
constitutionally defective. This waiver does not, however, prevent
defendant from challenging the effectiveness of defendant’s attorneys
after conviction and sentencing. Defendant does not have any
complaints at this time about the effectiveness of defendant’s attorney.
The waivers set out above relate to any issues that now exist or that may
arise in the future. Defendant agrees to these waivers in order to induce
the government to accept the provisions and stipulations of this plea
agreement, to avoid trial, and to have defendant’s case finally
concluded. Defendant understands that, at the conclusion of the
sentencing hearing, the Court will note defendant’s appeal rights are
limited by this waiver. No assurances or promises have been made by
any party as to what defendant’s ultimate sentence will be.
The plea agreement also contained a provision stating that Stuber acknowledged he
was entering into the plea agreement and pleading guilty freely and voluntarily.
During the colloquy with the district court at his change of plea hearing, the district
court specifically questioned Stuber about his mental state; Stuber affirmed he
understood the proceedings and that he did not have to enter a guilty plea, was
generally satisfied with his attorney, and had gone over and understood the plea
agreement; his attorney affirmed her belief that Stuber was competent to enter a
guilty plea; and the district court specifically identified the rights Stuber would be
giving up by pleading guilty, with Stuber affirming that he understood he was
relinquishing these rights. Stuber also explicitly acknowledged that he understood
that he was waiving certain appeal rights as part of his plea agreement and that he
had not been forced, threatened, or pressured in any way to enter a guilty plea, nor
had he received any promises in exchange for a guilty plea, apart from those
contained in the plea agreement. Further, Stuber’s attorney stated her belief that
Stuber’s guilty plea was voluntary.
-3-
At the sentencing hearing, the district court calculated Stuber’s Guidelines
range at 37 to 46 months imprisonment. The government sought an upward
departure pursuant to USSG § 2A6.1 note 4 based on Stuber’s actions in making
multiple threatening communications and an upward departure pursuant to USSG
§ 4A1.3 based on the underrepresentation of Stuber’s criminal history. The
government sought, in the alternative, an upward variance, and sought a total term
of imprisonment of 63 months. Stuber sought a downward departure for reduced
mental capacity pursuant to USSG § 5K2.13 or a downward variance. The district
court denied Stuber’s motions, granted the government’s motion for an upward
departure based on USSG § 2A6.1, denied the government’s motion for an upward
departure based on USSG § 4A1.3, and sentenced Stuber to 72 months
imprisonment. The district court also stated that if the departure were erroneous, it
would have imposed an upward variance after considering the applicable 18 U.S.C.
§ 3553(a) factors to reach the same sentence.
Stuber appeals, asserting that the district court violated his due process rights
and committed procedural error in sentencing him. The government responds that
Stuber’s claims are barred by the appeal waiver in his plea agreement. “We review
de novo issues concerning the interpretation and enforcement of a plea agreement
and the application of appeal waivers.” United States v. Dallman, 886 F.3d 1277,
1280 (8th Cir. 2018). “When reviewing a purported waiver, we must confirm that
the appeal falls within the scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily. Even when these
conditions are met, however, we will not enforce a waiver where to do so would
result in a miscarriage of justice.” United States v. Andis, 333 F.3d 886, 889-90 (8th
Cir. 2003).
Stuber first asserts that the appeal waiver is ambiguous due to conflicting
provisions in the plea agreement and thus must be construed in his favor. Stuber
specifically identifies paragraph 12(I) of the plea agreement as in conflict with the
general “Waiver of Appeal” provision. Paragraph 12(I) provides: “No other
agreements have been reached, and the parties are free to litigate any and all other
-4-
applicable adjustments, departures, or cross-references under the United States
Sentencing Guidelines, and any variances of any kind from the advisory guideline
range, in any amount, in either direction.” Stuber asserts that this provision reserves
his right to pursue his claims on appeal. We disagree. While it is true that appeal
waivers are “strictly construed” with any ambiguity “read against the Government
and in favor of a defendant’s appellate rights,” see Andis, 333 F.3d at 890, here,
there is no conflict between the general appeal waiver and paragraph 12(I) in the
plea agreement. Paragraph 12(I) is contained within the section of the plea
agreement detailing the parties’ stipulations regarding application of the Guidelines
and clearly delineates the parties’ rights at the initial sentencing hearing before the
district court, while the other limits his rights to appeal his sentence. Indeed, this
Court has recently enforced an appeal waiver in a case where the defendant made
the same argument regarding identical language in a plea agreement. See United
States v. Arce, 816 F. App’x 30, 31 (8th Cir. 2020) (per curiam); see also Brief of
Appellant at 35, United States v. Arce, No 19-2972 (8th Cir. Dec. 13, 2019).
Finding no ambiguity in the appeal waiver, we conclude that Stuber’s claims
fall within the scope of the waiver. The appeal waiver allows Stuber to appeal in
only three limited circumstances: to assert claims that the sentence is not in
accordance with this plea agreement; the sentence imposed exceeds the maximum
statutory penalty; and the sentence is constitutionally defective. Although Stuber
purports to raise a constitutional claim by alleging a violation of his due process
rights, his argument is, in essence, that his sentence is substantively unreasonable
because the district court failed to adequately take into consideration his mental
health condition. Despite Stuber’s attempt to advance his argument in language
designed to evade the limits of his appeal waiver, he cannot transform a substantive
unreasonableness argument into a constitutional one. Second, Stuber’s claim of
procedural error does not purport to raise any of the identified issues upon which he
may pursue an appeal. Stuber’s claims thus fall squarely within the scope of the
appeal waiver.
-5-
The record also demonstrates that Stuber knowingly and voluntarily entered
into the plea agreement and appeal waiver. The plea agreement contains Stuber’s
acknowledgment that the plea agreement and guilty plea were voluntary. The
district court also questioned Stuber at his change of plea hearing ensuring that
Stuber understood the consequences of his actions in entering a guilty plea pursuant
to the plea agreement and that he was doing so voluntarily. In addition, the district
court confirmed with Stuber’s attorney that she believed Stuber’s actions to be
voluntary. Thus, the record sufficiently demonstrates the knowing and voluntary
nature of Stuber’s plea agreement and appeal waiver. See United States v. Sisco,
576 F.3d 791, 796 (8th Cir. 2009) (finding that a plea agreement and appeal waiver
were knowing and voluntary based in part on colloquy between district court and
defendant). Finally, we conclude that enforcement of the waiver would not result in
a miscarriage of justice. See United States v. Gatling, 803 F. App’x 969, 972 (8th
Cir. 2020) (per curiam) (“[T]he ‘miscarriage of justice’ exception is a narrow one
that may arise in only limited contexts.”).
We accordingly enforce the appeal waiver and dismiss the appeal.
______________________________
-6-