United States v. Adams

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-13-2005
USA v. Adams
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3127
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3127
UNITED STATES OF AMERICA
v.
DARRYL ADAMS,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. 01-cr-00564
District Judge: The Honorable Robert F. Kelly
Submitted Under Third Circuit LAR 34.1(a)
September 16, 2005
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Opinion Filed: October 13, 2005)
OPINION
BARRY, Circuit Judge
Darryl Adams asks us to vacate his 100-month sentence for five counts of bank
robbery and remand his case for re-sentencing under United States v. Booker, 125 S. Ct.
738 (2005). First, however, we must determine whether Adams’ decision to waive his
right to appeal, absent a sentence that, as relevant here, “exceeds the statutory maximum,”
prevents us from doing so. Because we find that Adams’ waiver was valid and
enforceable, we lack jurisdiction and will dismiss the appeal.
I.
From July 19 through August 8, 2001, Adams entered five banks in southeastern
Pennsylvania, ordered employees and patrons to get on the floor, and took money from
the cash drawers. Adams stole a total of approximately $61,833 before he was arrested.
On September 18, 2001, a grand jury indicted Adams on five counts of bank robbery, in
violation of 18 U.S.C. § 2113(a).
On November 8, 2002, pursuant to a plea agreement, Adams entered a plea of
guilty to all five counts. In the plea agreement, Adams acknowledged that under §
2113(a) the District Court could sentence him to a “statutory maximum” of 20 years in
prison on each count, up to a total of 100 years. Additionally, Adams and the government
entered into certain stipulations. First, in the stipulation relevant here, Adams agreed to
be classified as a “career offender” for sentencing purposes under section 4B1.1(C) of the
United States Sentencing Guidelines (“Guidelines”) due to his two previous armed
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robbery convictions in 1983 and 1985. The career offender stipulation resulted in a base
offense level of 32 and a criminal history category of VI. Second, it was stipulated that
Adams accepted responsibility for his offenses, qualifying him for a two-level reduction
in his offense level under Guidelines section 3E1.1(a), and for an additional one-level
reduction under section 3E1.1(b) because he informed the government of his intent to
plead guilty in a timely manner. In return for these stipulations, Adams waived his right to
appeal and to collaterally attack his conviction or his sentence unless, inter alia, “the
defendant’s sentence exceeds the statutory maximum.” (App. 22a.)
At Adams’ change-of-plea hearing, the District Court stated that the “total
maximum possible sentence for the five counts of bank robbery would be 100 years in
prison.” When asked, “do you understand that?” Adams replied, “Yes.” (App. 32a.)
Additionally, the government orally restated the terms of Adams’ plea agreement,
including his agreement to be classified as a career offender under Guidelines section
4B1.1(c), and his agreement to waive his right to appeal absent a sentence that exceeds
the statutory maximum. The Court then explained to Adams the significance of his waiver
of appeal, and Adams and his counsel indicated that they were satisfied with the
agreement. After finding that there was a factual basis for the plea and that Adams’ prior
convictions supported his designation as a career offender, the Court determined that
Adams “understands his rights and [is] willing voluntarily to give up those rights,” and
accepted his guilty plea. (App. 36a-40a.).
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The pre-sentence investigation report calculated Adams’ combined adjusted
offense level as 31. That number was then increased one level due to his career offender
status, and lowered three levels for his acceptance of responsibility, for a total offense
level of 29. His criminal history category of VI, when combined with his offense level of
29, resulted in a range of imprisonment of 151 to 188 months.
On June 24, 2004, the decision in Blakely v. Washington, 542 U.S. 296 (2004),
was announced. At Adams’ sentencing hearing just three weeks later, he objected, in
light of Blakely, to any enhancements to his sentence based upon his career offender
status. Despite his stipulation that he was, in fact, a career offender, Adams argued that,
under Blakely, his Sixth Amendment right to a jury trial required that facts “legally
essential to his sentence, be presented to a grand jury” and charged in the indictment.
(App. 45a) Because the two prior crimes which served as the basis for his career offender
status were not charged in the indictment, the argument went, they could not be
considered for purposes of sentencing. The District Court disagreed, finding that Adams’
stipulated status as a career offender was not affected by Blakely. A sentence of 100-
months’ imprisonment and three-years supervised release was imposed.1
1
The District Court granted the government’s motion under Guidelines section 5K1.1,
resulting in a sentence below the guideline range.
4
II.
Adams asks us to remand for re-sentencing in light of United States v. Booker, 125
S. Ct. 738 (2005). However, because questions of subject matter jurisdiction must be
considered at the outset, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998), and because if a defendant “knowingly and voluntarily waive[s] his right to
appeal, the waiver effectively deprives us of jurisdiction,” United States v. Khattak, 273
F.3d 557, 562 (3d Cir. 2001), we must first consider the effect of Adams’ waiver of
appeal.
III.
Adams does not dispute that he waived his right to appeal. He invokes, however,
an exception to that waiver for claims that “the defendant’s sentence exceeds the statutory
maximum,” arguing that his 100-month sentence exceeds, not the 20-year statutory
maximum for bank robbery, but rather the definition of “statutory maximum” used by the
Supreme Court in Blakely and Booker, i.e., the “maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
Booker, 125 S. Ct. at 749 (quoting Blakely, 124 S. Ct. at 2537) (emphasis added).
Despite the fact that he stipulated to his prior convictions and his resulting career offender
classification, Adams argues that because those convictions were not charged in the
indictment, the 100 months he received exceeded the 51-63 months the Guidelines would
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have called for absent his career offender classification 2 and, thus, he was sentenced
beyond the statutory maximum.
On June 26, 2000, the Supreme Court held in Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” As noted by then-circuit judge, now Chief
Justice Roberts, “[i]n Apprendi, ‘statutory maximum’ had a relatively clear meaning: it
was the maximum penalty allowed by the criminal statute that the defendant was charged
with violating.” United States v. West, 392, F.3d 450, 459 (D.C. Cir. 2004) (citing
Apprendi, 530 U.S. at 468-69)). This definition of “statutory maximum” is the phrase’s
usual and ordinary meaning. See, e.g., United States v. Lee, 359 F.3d 194, 209-10 (3d
2
Given our disposition of this case, we do not reach the merits of Adams’ Blakely-
Booker argument. Were we to do so, however, Adams would not prevail. Booker held
that “any fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
125 S. Ct. at 756 (emphases added). Even aside from the fact that Adams admitted to his
prior convictions and the facts underlying those convictions, thus negating the need for
those matters to be “proved to a jury beyond a reasonable doubt,” the fact of a prior
conviction need not be charged in an indictment even post-Blakely and Booker. Id.;
Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998) (holding that recidivism is
not an element of an offense as it goes to punishment only); United States v. Ordaz, 398
F.3d 236, 241 (3d Cir. 2005) (“The holding in Almendarez-Torres remains binding law,
and nothing in Blakely or Booker holds otherwise.”). Adams concedes the binding effect
of Almendarez-Torres.
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Cir. 2004) (contrasting the statutorily authorized maximum sentence for a crime with the
guideline range applicable to a particular defendant who committed that crime).
Subsequently, on November 8, 2002, Adams pleaded guilty, waiving his right to
appeal except, as relevant here, if his sentence exceeded the statutory maximum. The
District Court explicitly informed Adams that he faced a “maximum possible penalty
under the statute” of 100 years in prison. (App. 32a.) Adams said he understood, and did
not suggest that “statutory maximum” meant only 51-63 months.
On June 24, 2004, the Supreme Court decided Blakely, which applied Apprendi to
the State of Washington’s sentencing guidelines and clarified that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely,
124 S. Ct. at 2537. Less than one month later, on July 16, 2004, the District Court
sentenced Adams to 100 months in prison, rejecting his Blakely objection.
This time line demonstrates that the Blakely definition of “statutory maximum” is
not the one Adams and the government had in mind when entering into the plea
agreement over one year and seven months prior to Blakely. Indeed, at the time of the
plea agreement, our case law made clear that an Apprendi claim only existed if, based on
facts found by the sentencing judge by a preponderance of the evidence, the defendant
was sentenced beyond the maximum prescribed by statute. See e.g., United States v.
Johnson, 302 F.3d 139, 155, 155 n.14 (3d Cir. 2002) (finding Apprendi to be “irrelevant”
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where the district court sentenced defendant to less than the maximum permitted by the
statute violated); United States v. Sanches-Gonzalez, 294 F.3d 563, 565 (3d Cir. 2002)
(rejecting defendant’s Apprendi claim because he “did not receive a sentence ‘beyond the
prescribed statutory maximum’”). Adams himself acknowledges as much in his brief.
It was not until Blakely that “statutory maximum” was given the meaning Adams
seeks to take advantage of now, and even then was only so defined “for Apprendi
purposes,” not to alter the term’s plain meaning in the plea agreement context. As
explained by the Court of Appeals for the Eleventh Circuit, Blakely and Booker’s use of
“statutory maximum” in explaining Apprendi’s holding was intended to
“describe the parameters of the rule announced in those decisions, a rule
that had nothing to do with the scope of appeal waivers. The term was
defined in a specialized, which is to say a non-natural, sense. It was defined
that way not only for semantic convenience but also in order to justify and
explain the holdings the Court entered in those decisions. Everyone knows
that a judge must not impose a sentence in excess of the maximum that is
statutorily specified for the crime. By labeling a sentence that the judge
may not impose under the Apprendi/Booker doctrine as one in excess of the
‘statutory maximum,’ the Court may have sought to call into play that well-
known principle of law.”
United States v. Rubbo, 396 F.3 1330, 1334 (11th Cir. 2005) (citations omitted).
We find that the exception to Adams’ waiver of appeal for a sentence in excess of
the statutory maximum only applies to a sentence exceeding the maximum punishment
prescribed by Congress in the criminal statute violated, 18 U.S.C. § 2113(a), and not the
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“specialized,” “non-natural” definition of “statutory maximum” in Blakely and Booker.3
Because Adams’ sentence of 100 months for five counts of bank robbery does not exceed
the “statutory maximum” of 20 years per count, the “statutory maximum” exception does
not save him from his waiver of appeal.
Adams argues in the alternative that regardless of the “statutory maximum”
exception, his waiver of appeal was invalid because “it was unknowingly and
involuntarily entered into with respect to potential Blakely claims,” given that Blakely had
not yet been decided. (Appellant’s Br. at 12, 14 n.4.) We reject this argument as well.
“[W]aivers of appeals are generally permissible if entered into knowingly and
voluntarily, unless they work a miscarriage of justice.” Khattak, 273 F.3d at 558. Neither
a plea agreement nor a waiver of appeal is rendered unknowing or involuntary simply
because a later court decision or statute expands a right waived in that agreement. United
States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005) (citing Brady v. United States, 397
3
Six of our sister courts of appeals have similarly ruled in cases with analogous or
identical facts. See United States v. Blick, 408 F.3d 162, 169 n.7, 170 (4th Cir. 2005)
(finding that defendant’s post-Apprendi, pre-Blakely appeal waiver exception for a
sentence in excess of the “statutory maximum” did not contemplate Blakely-based
challenges to the Guidelines); United States v. Bond, 414 F.3d 542, 545-46 (5th Cir.
2005) (same); United States v. Luebbert, 411 F.3d 602, 603 (6th Cir. 2005) (same);
United States v. Rubbo, 396 F.3d 1330, 1333-35 (11th Cir. 2005) (same); United States v.
West, 392 F.3d 450, 460 (D.C. Cir. 2004) (same); United States v. Green, 405 F.3d 1180,
1193-94 (10th Cir. 2005) (following Rubbo and West in interpreting “statutory maximum”
in a post-Apprendi, pre-Blakely case).
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U.S. 742, 757 (1970)). “A valid plea agreement, after all, requires knowledge of existing
rights, not clairvoyance.” Lockett, 406 F.3d at 213 (emphasis added).
Adams voluntarily pled guilty and waived his right to appeal his sentence with full
knowledge of his existing rights and in exchange for certain benefits. As with any
contract, both sides assumed a risk in the plea agreement that later events would affect the
attractiveness of the bargain. To allow a defendant to void a plea of guilty or a waiver of
appeal whenever subsequent changes in the law might help his or her case (and we do not
suggest that Blakely and Booker would), would undermine the interest in finality of
judgments and sentences, and would “prolong litigation, affording defendants the benefits
of their agreements while shielding them from their self-imposed burdens.” Khattak, 273
F.3d at 561. Adams’ failure to foresee Blakely and Booker does not render his plea or his
waiver involuntary or unknowing and enforcing the waiver would surely not result in a
miscarriage of justice. We hold, as we held in Lockett, that “where a criminal defendant
has voluntarily and knowingly entered into a plea agreement in which he or she waives
the right to appeal, the defendant is not entitled to resentencing in light of Booker.”
Lockett, 406 F.3d at 214.
IV.
Because Adams has waived his right to appeal, the appeal will be dismissed for
lack of jurisdiction.
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