United States v. Floyd Harshman ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30030
Plaintiff-Appellee, D.C. No.
4:12-cr-00003-RRB-1
v.
FLOYD EVERETT HARSHMAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 4, 2016
Anchorage, Alaska
Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.
Floyd Harshman appeals his conviction and sentence following entry of a
guilty plea pursuant to a plea agreement. He argues that the waiver of his appellate
rights in the plea agreement is unenforceable and that the district court abused its
discretion in denying his motion to withdraw his guilty plea. We dismiss his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
appeal based on the waiver. See United States v. Rahman, 642 F.3d 1257, 1259
(9th Cir. 2011) (“Because an appeal from the denial of his motion to withdraw his
plea is an appeal from his convictions, Rahman’s appellate waiver extends to this
appeal.”).
1. Harshman has not demonstrated that the conditions of his pretrial
confinement rendered his waiver involuntary. See id. (observing that a waiver of
appellate rights is enforceable only if it is voluntarily made). The district court
engaged Harshman in a lengthy colloquy at his change-of-plea hearing, a colloquy
Harshman’s counsel did not challenge on appeal but rather acknowledged at oral
argument was “[a]ctually pretty – fairly well done.” The thorough colloquy
suffices to demonstrate that Harshman’s waiver was voluntary. See United States
v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996).
Moreover, Harshman informed the court during the plea colloquy that he
was voluntarily entering the plea agreement, waiving his right to appeal, and
pleading guilty, without ever mentioning the jail conditions. Instead, the colloquy
reveals that Harshman pleaded guilty because he determined that federal law would
preclude him from, as he put it, “being completely open and honest with my jury.”
Harshman gave as an example that he would be prohibited from urging the jury to
consider his potential sentence when evaluating his guilt. These statements, which
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are entitled to a “strong presumption of veracity in subsequent proceedings
attacking the plea,” United States v. Yamashiro, 788 F.3d 1231, 1237 (9th Cir.
2015) (quoting United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008)), show
that Harshman considered the advantages of pleading guilty given the constraints
he would face at trial and then voluntarily chose to plead guilty in light of those
constraints, not because of the jail conditions.
2. Harshman also has not demonstrated that his appeal waiver is
unenforceable because the government has yet to urge Alaska to return money
taken from him upon arrest, as it promised to do in the plea agreement. See United
States v. Hernandez-Castro, 814 F.3d 1044, 1045 (9th Cir. 2016) (“A defendant is
released from his or her appeal waiver if the government breaches the plea
agreement.”). Disputes over the terms of a plea agreement “must be resolved by
determining, under an objective standard, ‘what the parties to the plea bargain
reasonably understood to be the terms of the agreement.’” United States v.
Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988) (emphasis added) (quoting
United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985)).
Here, Harshman pleaded guilty as provided in his plea agreement. But he
moved to withdraw his guilty plea three months later and then mailed a notice of
appeal one day after sentencing, giving “official notification of [his] intent to
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appeal [his] case in its entirety” despite the court having imposed the agreed-upon
sentence. Harshman could not reasonably have understood the plea agreement to
permit him to challenge its validity on direct appeal and yet still obtain the
prospective benefits of the agreement before that challenge was resolved.1
3. Contrary to Harshman’s argument, a 2014 memorandum from the
Deputy Attorney General instructing federal prosecutors to decline to enforce
certain appeal waivers does not justify setting aside his waiver. Cf. United States
v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) (reiterating that the guidelines
set forth in the United States Attorneys’ Manual “do not create any rights in
criminal defendants”).
4. Finally, Harshman argues that his “lawyer provided ineffective
assistance of counsel in connection with the plea, but we decline to address that
issue on direct appeal. [Harshman] may raise such a claim in a collateral
1
Harshman having been sentenced in accordance with the plea agreement
and his appeal now dismissed, the government is in a position to fulfill its promise
to urge the state to return his money. If Harshman elects to collaterally attack his
plea, that attack will be consistent with the express reservation of his right to do so
under the terms of the plea agreement. We reject the government’s suggestion that
Harshman must await completion of proceedings expressly contemplated by the
agreement before the agreement is considered to take effect. See United States v.
Clark, 218 F.3d 1092, 1095 (9th Cir. 2000) (observing that if a plea agreement
remains ambiguous after examining the parties’ reasonable understanding,
ambiguities are construed against the government).
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proceeding, where a complete record can be developed.” United States v. Brizan,
709 F.3d 864, 867 (9th Cir. 2013); see also Rahman, 642 F.3d at 1260.
DISMISSED.
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