United States v. Golden

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 26, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-7093
v. (E.D. Oklahoma)
DANNY JAMES GOLDEN, (D.C. No. CR-04-11-5-P)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Danny James Golden pleaded guilty to one count of conspiracy to distribute
methamphetamine, in violation 21 U.S.C. § 846. The district court sentenced him
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to 195 months of imprisonment, 60 months of supervised release, and a $100.00
special assessment. Mr. Golden claims that the district court committed error
under United States v. Booker, 125 S. Ct. 738 (2005), when it found by a
preponderance of the evidence that the underlying crime involved certain drug
quantities that would warrant a higher base offense level under the guidelines.
We conclude that Mr. Golden’s plea agreement waived his right to bring this
appeal, and for the reasons stated below, we affirm his conviction and sentence.
I. BACKGROUND
Co-defendant Olen G. Rambo owned and operated a convenience store
located in Stuart, Oklahoma, and sometime in 1999 began selling large amounts
of pseudoephedrine illegally to co-defendants Tammy and Ernestine Golden. The
demand for pseudoephedrine from Tammy and Ernestine Golden became so large
that eventually Rambo set up post office boxes in Stuart, Krebs, McAlester, and
Calvin, Oklahoma, where he had the pseudoephedrine shipped. Ernestine and
Tammy Golden would then pick up the large quantities of pseudoephedrine from
those locations, and sign the name of Olen Rambo on the delivery sheet. Grand
jury subpoenas were issued to multiple suppliers of pseudoephedrine, tracing back
the large amounts of pseudoephedrine ordered by Olen Rambo and sold to
Ernestine and Tammy Golden.
In November, 2001, Special Agent Jim Waddell of the Drug Enforcement
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Administration, while acting in an undercover capacity, made a controlled
purchase of methamphetamine in excess of fifty grams from Tammy and Ernestine
Golden; that transaction was captured on video tape. Furthermore, confidential
informants who sold methamphetamine for the Goldens indicated that from 1999
to October 2001, Mr. Golden would use the pseudoephedrine supplied by
Tammy and Ernestine Golden, and purchased from Mr. Rambo, to manufacture
and distribute methamphetamine.
When Mr. Golden entered his guilty plea, the government agreed to file a
motion for acceptance of responsibility. A written plea agreement was disclosed
to the Court and acknowledged by the defendant. At paragraph 22 of that plea
agreement, Mr. Golden acknowledged that he was waiving any and all appellate
rights except for the right to challenge an upward departure of the sentencing
guidelines.
The presentence report (“PSR”) recommended that Mr. Golden’s offense
level was 38, minus three points for the government’s motion for acceptance of
responsibility, for a final offense level of 35, placing the defendant’s sentencing
range at 168-210 months. Mr. Golden objected to the PSR, raising concerns
under Blakely v. Washington, 124 S. Ct. 2531 (2004). At the sentencing hearing
the district court overruled the objections and noted: “Based upon defendant’s
failure to object to the factual information contained in the Presentence report, the
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Court finds, by a preponderance of the evidence, that the Base Offense Level
contained in the presentence report at paragraphs 40 and 41 is accurate.
Therefore, the defendant’s objection is overruled.” The district court then
sentenced the defendant to 195 months’ incarceration, and 60 months’ supervised.
II. DISCUSSION
This court has concluded that a defendant’s waiver of his appellate rights,
made before the Supreme Court issued its opinion in Blakely, is enforceable and
may bar consideration of any claims he may assert under Booker. United States v.
Green, 405 F.3d 1180, 1189 (10th Cir. 2005). The Tenth Circuit “generally
enforces plea agreements and their concomitant waivers of appellate rights.”
United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004) (en banc). In
considering how to resolve appeals brought by defendants who have waived their
appellate rights in a plea agreement, we must determine (1) if an appeal falls
within the scope of the appellate waiver; (2) whether the defendant’s waiver of
appellate rights was knowing and voluntary; and (3) whether enforcement of the
appellate waiver would result in a miscarriage of justice. Id. at 1325.
The defendant’s waiver, found on page 11, in paragraph 22 of the plea
agreement, states as follows:
Defendant expressly waives the right to appeal defendant’s sentence on
any ground, except to challenge an upward departure from the
applicable guideline range as determined by the Court. Defendant
specifically waives any appeal rights conferred by Title 18, United
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States Code, Section 3742, any post-conviction proceedings, and any
habeas corpus proceedings. Defendant is aware that Title 18, United
States Code, Section 3742 affords defendant the right to appeal the
sentence imposed. Defendant is also aware that the sentence herein has
not yet been determined by the Court. Defendant is aware that any
estimate of the probable sentencing range that defendant may receive
from his attorney, plaintiff, the probation office, or any agents of such
parties, is not a promise, and is not binding on plaintiff, the probation
office, or the Court. Realizing the uncertainty in estimating what
sentence defendant will ultimately receive, defendant knowingly waives
the right to appeal the sentence (except as to an upward departure) and
agrees not to contest such sentence in any post conviction proceeding,
including but not limited to writs of habeas corpus or coram nobis
concerning any and all motions, defenses, probable cause
determinations, and objections which defendant has asserted or could
assert to this prosecution and to the court’s entry of judgment against
defendant and imposition of sentence, in exchange for the concessions
made by the United States in this agreement and the execution of the
agreement itself. 1
(Emphasis supplied).
1. Language of the agreement
Clearly, the language of the plea agreement encompasses this appeal. The
government states that broad language of the waiver – that the “defendant
expressly waives the right to appeal defendant’s sentence on any ground, except
to challenge an upward departure from the applicable guideline range as
determined by the court” – clearly demonstrates his intent to waive all potential
issues on appeal, except for the one basis specifically exempted. (Emphasis
1
We note that the plea agreement is not in the record. Mr. Golden does
not dispute this recitation of para. 22, taken from the government’s brief, is
correct. See Aple’s Br. at 13.
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added). The defendant does not contest this language is part of the plea
agreement. Because his current argument on appeal does not relate to a challenge
to an upward departure, but merely an enhancement, defendant’s Blakely
argument is within the scope of his waiver. See United States v. Waugh, 207 F.3d
1098, 1101 (8th Cir. 2000) (noting that enhancements and departures are “two
very different concepts”).
2. Knowing and voluntary
According to the government, and undisputed by Mr. Golden, he agreed
that the court was “required to consider the applicable sentencing guideline” and
could “depart from those guidelines under some circumstances.” Aple’s Br. at 14.
In so agreeing, he indicated an acceptance of the mandatory guidelines regime
that existed before Booker, rather than a regime in which the guidelines are
advisory.
In Green, 405 F.3d at 1189, we cited the Eleventh Circuit’s observation
that Booker arguments may fall within the scope of a defendant’s waiver of his or
her appellate rights. See United States v. Grinard-Henry, 399 F.3d 1294, 1296
(11th Cir.) (“[t]he right to appeal a sentence based on Apprendi/Booker grounds
can be waived in a plea agreement. Broad waiver language covers those grounds
on appeal.”) (internal quotation omitted), cert. denied, 125 S. Ct. 2279 (2005). In
Green, we held that all of defendant’s potential arguments on appeal fell within
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the scope of his appellate rights waiver. The same is true here: the record as a
whole reflects that Mr. Golden knowingly and voluntarily waived his appellate
rights, as reflected in the change of plea.
We have also noted that a defendant’s waiver of his appellate rights is not
otherwise unlawful based on the subsequent issuance of Booker. See United
States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005) (“[W]e find the change
Booker rendered in the sentencing landscape does not compel us to
hold the defendant’s plea agreement unlawful . . . . To allow defendants or the
government to routinely invalidate plea agreements based on subsequent changes
in the law would decrease the prospects of reaching an agreement in the first
place, an undesirable outcome given the importance of plea bargaining to the
criminal justice system.”)
3. Miscarriage of justice
Finally, we agree with the district court that enforcing Mr. Golden’s waiver
of his appellate rights will not result in a miscarriage of justice. The sentence
imposed did not exceed the statutory maximum of twenty years or the guideline
maximum as provided by the sentencing range calculated. The defendant’s
sentence of 195 months falls well within the range of either.
Mr. Golden suggests only one reason why the waiver is unenforceable:
Citing Hahn, 359 F.3d at 1328, he notes the government’s failure to file a timely
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motion to enforce the waiver under Tenth Circuit Rule 27.2. However, “[n]othing
in Rule 27.2 provides that a contention that can be raised by motion must be
raised by motion, on pain of forfeiture. United States v. Clayton, 416 F.3d 1236,
1238 (10th Cir. 2005). In Clayton we noted that “[a] Rule 27.2 motion is one
method whereby the government may choose to enforce the waiver, but the rule
does not prevent the government from seeking enforcement through other means,
such as its brief on the merits.” Id. at 1239. Because the government addressed
Mr. Golden’s waiver of appellate rights in its merits brief, Mr. Golden’s argument
thus fails.
III. CONCLUSION
Accordingly, we enforce Mr. Golden’s waiver of his right to appeal, and
DISMISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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