United States v. Mark-Anthony Adams , 780 F.3d 1182 ( 2015 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued January 9, 2015                 Decided March 20, 2015
    No. 13-3020
    UNITED STATES OF AMERICA,
    APPELLEE
    v.
    MARK-ANTHONY ELISHA ADAMS,
    APPELLANT
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:12-cr-00093-1)
    Deborah A. Persico argued the cause for appellant. On
    the brief was Joseph Virgilio.
    Peter S. Smith, Assistant U.S. Attorney, argued the cause
    for appellee. With him on the brief were Ronald C. Machen,
    Jr., U.S. Attorney, and Elizabeth Trosman, Elizabeth H.
    Danello, and Jonathan P. Hooks, Assistant U.S. Attorneys.
    Before: TATEL and MILLETT, Circuit Judges, and
    GINSBURG, Senior Circuit Judge.
    Opinion for the Court filed by Senior Circuit Judge
    GINSBURG.
    2
    GINSBURG, Senior Circuit Judge: Mark-Anthony Elisha
    Adams appeals the sentence imposed by the district court
    after he pleaded guilty to conspiracy to commit wire and mail
    fraud. We dismiss the appeal because, in his plea agreement,
    Adams waived his right to appeal.
    I. Background
    A grand jury indicted Adams for having devised and
    carried out a scheme to defraud the United States Agency for
    International Development. Adams agreed to plead guilty to
    one count of conspiracy to commit wire and mail fraud in
    return for which the Government would move to dismiss the
    other 21 counts in the indictment. The agreement explained
    the sentence would be determined by the court and the range
    indicated by the United States Sentencing Guidelines was 51
    to 63 months imprisonment. The parties further “agree[d] that
    a sentence within the applicable Guidelines Range ... would
    constitute a reasonable sentence,” and that Adams
    waive[d] the right to appeal his sentence or the manner
    in which it was determined pursuant to 
    18 U.S.C. § 3742
    , except to the extent that (a) the Court
    sentences [Adams] to a period of imprisonment longer
    than the statutory maximum, or (b) the Court departs
    upward from the applicable Sentencing Guideline
    range pursuant to the provisions of U.S.S.G. § 5K.2 or
    based on a consideration of the sentencing factors set
    forth in 
    18 U.S.C. § 3553
    (a).
    After Adams pleaded guilty the district court sentenced him to
    the minimum Guidelines term of 51 months imprisonment
    and to three years of supervised release, and ordered him to
    pay restitution.
    3
    II. Analysis
    Adams argues the district court erred in three respects.
    First, he contends the court erred by denying his motion to
    delay sentencing, filed two days before his sentencing
    hearing, until two doctors determined whether Adams would
    benefit from simultaneous organ transplants. Adams claims
    the information provided by the doctors would have aided the
    court in deciding whether any time in prison was warranted in
    light of Adams’s ill health. Second, Adams argues the court
    erred during the sentencing hearing by cutting short his cross-
    examination of the Government’s witness, who testified about
    the medical care Adams would receive in prison. Third,
    Adams argues his sentence is substantively unreasonable. We
    do not consider any of these arguments because Adams
    waived his “right to appeal his sentence or the manner in
    which it was determined pursuant to 
    18 U.S.C. § 3742
    .”
    A “knowing, intelligent, and voluntary” waiver of the
    right to appeal “generally may be enforced.” United States v.
    Guillen, 
    561 F.3d 527
    , 529 (D.C. Cir. 2009). We will not
    enforce a waiver, however, if “the defendant makes a
    colorable claim he received ineffective assistance of counsel
    in agreeing to the waiver” or “if the sentencing court’s failure
    in some material way to follow a prescribed sentencing
    procedure results in a miscarriage of justice.” 
    Id.
     at 530–31.
    The latter exception applies if, for example, “the district court
    utterly fails to advert to the factors in 
    18 U.S.C. § 3553
    (a),”
    the sentence exceeds the statutory maximum, or the sentence
    is “colorably alleged to rest upon a constitutionally
    impermissible factor, such as the defendant’s race or
    religion.” 
    Id. at 531
    .
    Adams relies upon the “miscarriage of justice” exception
    to argue that we should refuse to enforce the waiver, but he
    4
    has neither claimed nor shown that any of the examples
    identified in Guillen, nor any comparably serious procedural
    failure, infects this case. Instead, Adams takes issue with the
    way in which the district judge exercised her discretion in
    deciding what evidence was relevant to the determination of
    his sentence. Specifically, he argues the district court should
    have postponed sentencing while he gathered additional
    medical evidence and should have allowed him more leeway
    to cross-examine the Government’s witness during the
    sentencing hearing. As other courts have explained, however,
    “an allegation that the sentencing judge misapplied the
    Sentencing Guidelines or abused his or her discretion is not
    subject to appeal in the face of a valid appeal waiver.” United
    States v. Andis, 
    333 F.3d 886
    , 892 (8th Cir. 2003) (en banc).
    Accordingly, when Adams waived his right to appeal “his
    sentence or the manner in which it was determined pursuant
    to 
    18 U.S.C. § 3742
    ,” he agreed to forgo both the procedural
    and the substantive challenges that he now seeks to press on
    appeal. See 
    18 U.S.C. § 3742
    (a)(1) (authorizing appeals of
    sentences “imposed in violation of law”); see also United
    States v. Buissereth, 
    638 F.3d 114
    , 117 (2d Cir. 2011)
    (“While [the defendant’s] appeal waiver did not relieve the
    District Court of its responsibility to follow the procedural
    requirements related to the imposition of a sentence, the
    appeal waiver does preclude this Court from correcting the
    errors alleged to have occurred”); United States v. Soto-Cruz,
    
    449 F.3d 258
    , 261 (1st Cir. 2006) (rejecting the appellant’s
    argument that “enforcement of the appeal waiver would work
    a miscarriage of justice because the district court denied his
    request to present, in a closed hearing, mitigation evidence
    and evidence of his background” before the court imposed the
    sentence).
    Viewed ex ante, not even Adams would want this case
    decided as he argues it ex post. As we have observed before,
    5
    “[a]llowing a defendant to waive the right to appeal his
    sentence ... gives him an additional bargaining chip to use in
    negotiating a plea agreement with the Government.” Guillen,
    
    561 F.3d at 530
    . If the Government cannot count upon the
    waiver being enforced in the mine run of cases — those in
    which enforcing it would not work a miscarriage of justice —
    then waiver will lose its value as a “bargaining chip” for a
    defendant. For this reason, “the miscarriage of justice
    exception is a very narrow exception to the general rule that
    waivers of appellate rights are enforceable.” United States v.
    Blue Coat, 
    340 F.3d 539
    , 542 (8th Cir. 2003).
    III. Conclusion
    Adams waived his right to appeal a sentence within the
    Guidelines range. The waiver is enforceable because he “has
    not shown that the district court worked a miscarriage of
    justice by failing to follow an essential procedure or relied
    upon a constitutionally impermissible factor.” Guillen, 
    561 F.3d at 532
    . Adams’s appeal is, therefore,
    Dismissed.
    

Document Info

Docket Number: 13-3020

Citation Numbers: 414 U.S. App. D.C. 302, 780 F.3d 1182, 598 Fed. Appx. 6, 2015 WL 1589271, 2015 U.S. App. LEXIS 4532

Judges: Tatel, Millett, Ginsburg

Filed Date: 3/20/2015

Precedential Status: Precedential

Modified Date: 10/18/2024