United States v. King Coney

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13736
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KING CONEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
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2 Opinion of the Court 21-13736
D.C. Docket No. 4:21-cr-00077-RSB-CLR-1
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Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
King Coney, a counseled federal prisoner, appeals his 120-
month sentence after pleading guilty to one count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In
his initial brief on appeal, he challenges several of the rationales
the district court relied upon when deciding his sentence. The
Government filed a motion to dismiss Coney’s appeal due to the
appeal waiver in his plea agreement. Coney responded that this
Court should not enforce the appeal waiver because the plea
agreement lacked consideration. At the request of the Court, the
parties submitted letter briefs which more fully addressed this is-
sue. Assuming arguendo that an enforceable appeal waiver in a
plea agreement requires consideration, we agree with the Gov-
ernment that it offered sufficient consideration for Coney’s plea
agreement, and we grant the Government’s motion to dismiss
this appeal pursuant to the appeal waiver in Coney’s plea agree-
ment.
The Eleventh Circuit has held that, with some exceptions,
it will enforce defendants’ knowing and voluntary appeal waivers.
United States v. Bushert, 997 F.2d 1343, 1350 & n.18 (11th Cir.
1993). Coney does not contest that he knowingly and voluntarily
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21-13736 Opinion of the Court 3
agreed to his plea agreement. Instead, he argues only that the
waiver “is not enforceable because there is no proper considera-
tion in exchange for the contractual waiver of [his] Constitutional
rights.” See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir.
2004) (“[A] guilty plea can be challenged for contractual invalidity,
including invalidity based on a lack of consideration.”). We have
described plea agreements as contracts subject to basic contract
law principles. See United States v. Howle, 166 F.3d 1166, 1168
(11th Cir. 1999) (“A plea agreement is, in essence, a contract be-
tween the Government and a criminal defendant. Among the
considerations that a defendant may offer as part of such a con-
tract is waiver of his right to appeal . . . .”). But we have not ad-
dressed whether a failure of consideration would void an other-
wise enforceable appeal waiver in a plea agreement into which a
criminal defendant knowingly and voluntarily entered. We need
not settle that question today.
Assuming arguendo that an enforceable appeal waiver in a
plea agreement requires consideration, we conclude that the
Government did provide sufficient consideration. The Govern-
ment agreed in the plea agreement that it would “not object to a
recommendation by the U.S. Probation Office that [Coney] re-
ceive a two-level reduction in offense level for acceptance of re-
sponsibility pursuant to Section 3E1.1(a) of the Sentencing Guide-
lines.” It also agreed that “[i]f the U.S. Probation Office makes
that recommendation, and [Coney’s] offense level is 16 or greater
prior to any reduction for acceptance of responsibility, the gov-
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4 Opinion of the Court 21-13736
ernment will move for an additional one-level reduction in of-
fense level pursuant to Section 3E1.1(b) based on [Coney’s] timely
notification of his intention to enter a guilty plea.”
Coney argues that this promise by the Government did not
confer any benefit upon him and, therefore, did not constitute ad-
equate consideration for his signing the plea agreement. But it
did benefit him: it reduced his offense level from 30 to 27, which
reduced his Guidelines range from 151–188 months to 120–150
months.
Coney argues that the lower offense level and reduced
Guidelines range cannot constitute adequate consideration be-
cause he was sentenced to the statutory maximum 120 months in
prison, which was the low end of his Guidelines range. See Unit-
ed States v. Lutchman, 910 F.3d 33, 38 (2d Cir. 2018) (“[T]hose re-
ductions had no practical impact. Even after a three-level reduc-
tion to the respective Guidelines ranges . . . , the bottom of the
resulting ranges exceeded the statutory maximum.”). We disa-
gree. As the Government notes, the plea agreement allowed Co-
ney to argue for below-Guidelines range sentence. Coney did so,
though the district court ultimately rejected his request “because
of the seriousness of the offense conduct and because of the seri-
ousness of the criminal history here.” Even though the Govern-
ment’s support for an offense level reduction did not affect Co-
ney’s ultimate sentence, it gave him “a chance at a reduced sen-
tence,” which is sufficient consideration. Brunetti, 376 F.3d at 95;
see also id. at 96 (“[T]he ex post worthlessness of the considera-
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21-13736 Opinion of the Court 5
tion he received does not render nugatory the ex ante value of
what [the defendant] got.”); United States v. Hernandez, 134 F.3d
1435, 1437–38 (10th Cir. 1998) (holding that the Government pro-
vided adequate consideration where it “stipulated” that the de-
fendant was “entitled to a three level reduction in his base offense
level under U.S.S.G. § 3E1.1” because the Government “did not
have to agree that [the defendant] was entitled to a three level re-
duction”).
Coney argues further in his letter brief that the Govern-
ment’s agreement not to oppose the “acceptance of responsibil-
ity” reduction cannot constitute consideration because he was
“entitled” to this sentence reduction under Section 3E1.1(a) of the
Sentencing Guidelines. See U.S.S.G. § 3E1.1 cmt. n.6 (“The gov-
ernment should not withhold such a motion based on . . . wheth-
er the defendant agrees to waive his or her right to appeal.”). But
Coney’s argument that he was “entitled” to an “acceptance of re-
sponsibility” sentence reduction is rebuffed by an earlier applica-
tion note to Section 3E1.1: “A defendant who enters a guilty plea
is not entitled to an adjustment under this section as a matter of
right.” Id. § 3E1.1 cmt. n.3. Moreover, to receive the third level
reduction under Section 3E1.1(b), the Government must make a
formal motion acknowledging that the defendant’s acceptance of
responsibility helped avoid the need to prepare for trial. See
U.S.S.G. § 3E1.1 cmt. n.6 (“Because the Government is in the best
position to determine whether the defendant has assisted authori-
ties in a manner that avoids preparing for trial, an adjustment un-
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6 Opinion of the Court 21-13736
der subsection (b) may only be granted upon a formal motion by
the Government at the time of sentencing.”). Accordingly, we
cannot conclude that the Government’s promises in the plea
agreement concerning the Section 3E1.1(a), (b) sentence reduc-
tions were illusory or that they conferred no benefit on Coney.
In summary, the Government’s promise to support an of-
fense level reduction cannot be deemed insufficient consideration
after the fact merely because the district judge exercised its discre-
tion to impose a sentence within the Guidelines range—even
when that sentence was the statutory maximum.1 Because we
conclude that the Government provided Coney sufficient consid-
eration for his guilty plea, the appeal waiver in the plea agreement
is valid and enforceable. Accordingly, we GRANT the Govern-
ment’s motion to dismiss this appeal pursuant to the appeal waiv-
er in Coney’s plea agreement.
1 In light of our decision in this regard, we need not consider the other bene-
fits to Coney which the Government argues also constitute sufficient consid-
eration for his plea agreement and appeal waiver.