United States v. One Male Juvenile

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4023
ONE MALE JUVENILE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-95-95)
Argued: May 5, 1997
Decided: July 11, 1997
Before MURNAGHAN and HAMILTON, Circuit Judges, and
LEGG, United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Dismissed by unpublished per curiam opinion. Judge Murnaghan
wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Thomas Richard
Ascik, Assistant United States Attorney, Asheville, North Carolina,
for Appellee. ON BRIEF: Mark T. Calloway, United States Attor-
ney, Asheville, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant, One Male Juvenile, appeals a twelve-month sentence
imposed by the district court following his guilty plea to two counts
of stealing property of an Indian tribal organization in violation of 18
U.S.C. §§ 1163 and 5031. Because appellant waived his right to
appeal his sentence in his plea agreement, we dismiss the appeal.
I.
On November 28, 1994, appellant and another juvenile climbed a
fence at the waste water treatment plant on the Cherokee Indian Res-
ervation in Swain County, North Carolina, entered an unlocked tool
shed, and stole a weedeater and a tool box owned by the Eastern Band
of the Cherokee Indians. A few days later, on December 2, 1994,
appellant broke into Birdtown Head Start, a day care facility also
located on the reservation, and took a number of items, including a
cordless telephone, a camcorder, a camera, and a video cassette
recorder. Later that day, a law enforcement officer, investigating sev-
eral larcenies on the reservation, went to appellant's residence, where
the investigator found pictures of appellant and two of the cameras
stolen from the day care center.
Appellant subsequently confessed to breaking and entering and
stealing property at the waste water treatment plant and the day care
center. In addition, appellant gave the police information about other
recent thefts.
On November 20, 1995, appellant entered into a plea agreement
with the government in which he pled guilty to two counts of stealing
property valued in excess of $100 from an Indian tribal organization
in violation of 18 U.S.C. § 1163. In the plea agreement, appellant
expressly waived his right to appeal his conviction and his sentence,
2
either on direct appeal or in a post-conviction proceeding, except on
the grounds of ineffective assistance of counsel or prosecutorial mis-
conduct. During the Rule 11 colloquy, see FED. R. CRIM. P. 11(c), the
district court expressly asked appellant whether he understood that by
pleading guilty he was waiving his right to appeal his conviction and
to contest his sentence, unless he was doing so on the grounds of inef-
fective assistance of counsel or prosecutorial misconduct. Appellant
responded that he understood the waiver and that he knowingly and
willingly waived his right to appeal. The district court thereafter
accepted appellant's plea.
Prior to the sentencing hearing, the government requested an
enhancement of appellant's sentence because appellant's offenses
involved "more than minimal planning." See U.S. SENTENCING
GUIDELINES MANUAL § 2B1.1(b)(4)(A) (1995). In addition, the govern-
ment moved the district court for an upward departure of two levels,
from criminal history category I to criminal history category III. See
id. § 4A1.3 (permitting increase in criminal history category where
criminal history category does not adequately reflect the seriousness
of the defendant's past criminal conduct or the likelihood of future
criminal conduct). These enhancements were recommended in appel-
lant's presentence report, and appellant objected to them.
On December 18, 1995, the district court conducted a sentencing
hearing. The district court noted that appellant's criminal history cate-
gory of I did not take into account two previous tribal court convic-
tions, see id. § 4A1.2(I) (sentences from tribal court convictions are
not counted when computing a defendant's criminal history but may
be considered when deciding whether to depart upwardly under
§ 4A1.3), and concluded that a criminal history category of I did not
adequately reflect appellant's prior criminal history. The district
court, therefore, agreed to depart two levels to a criminal history cate-
gory of III. In addition, the district court granted the government's
requested enhancement of two points for more than minimal planning.
Based on these enhancements, the district court sentenced appellant
to twelve months in prison, imposed a special assessment of $100,
and ordered restitution in the amount of $763.86, appellant's propor-
tionate share of the value of the economic loss sustained by the vic-
tims.
3
After announcing the sentence, the district court told appellant that
"[he] ha[d] an absolute right to appeal [his] sentence." (J.A. 108).
When asked whether he understood that right, appellant responded,
"yes." (J.A. 108). The government did not object to the district court's
statement. Appellant now appeals his sentence.
II.
Whether a defendant waived his right to appeal is a matter of law,
which we review de novo. See United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992).
A waiver of a criminal defendant's right to appeal contained in a
valid plea agreement "is enforceable against the defendant so long as
it is ``the result of a knowing and intelligent decision to forgo the right
to appeal.'" United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994)
(quoting United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991)), cert. denied, 115 S. Ct. 1957 (1995). In determining whether
a defendant's waiver is "knowing and intelligent," we consider "the
particular facts and circumstances surrounding [the] case, including
the background, experience and conduct of the accused." United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (citation and inter-
nal quotes omitted). Although a general waiver of the right to appeal
is valid, such a waiver does not preclude a defendant from arguing on
appeal that his sentence was imposed in excess of the maximum pen-
alty provided by statute or was based, for example, on a constitution-
ally impermissible factor, such as race. See Marin, 961 F.2d at 496.
A general waiver does preclude, however, an argument that the dis-
trict court improperly applied the sentencing guidelines or violated a
procedural rule when imposing sentence. See Attar, 38 F.3d at 732.
Considering the particular facts and circumstances of this case, we
believe that appellant's waiver of his right to appeal his sentence as
contained in the plea agreement was knowing and intelligent. During
the Rule 11 colloquy, the district court specifically questioned appel-
lant about his decision to waive his right to appeal. In response, appel-
lant stated that he understood the consequences of the waiver, and he
reaffirmed his decision. Although appellant was a juvenile at the time
he was sentenced, he was represented by counsel, and there is no evi-
dence that he was incapable of understanding the consequences of his
4
decision. In light of appellant's affirmance before the district court
that he knowingly and willingly waived his right to appeal and the
absence of any evidence suggesting his waiver was not knowing and
intelligent, the waiver was effective.
Appellant argues, however, that the district court's subsequent oral
pronouncement during sentencing that appellant had an absolute right
to appeal his sentence nullified the earlier waiver, such that it was no
longer knowing and intelligent. As support, appellant relies princi-
pally on the Ninth Circuit's decision in United States v. Buchanan, 59
F.3d 914 (9th Cir. 1995), cert. denied, 116 S. Ct. 430 (1996). In
Buchanan, the defendant entered into a plea agreement in which he
waived his right to appeal his sentence. See id. at 916. He subse-
quently confirmed that he understood both the plea agreement and its
consequences during the Rule 11 hearing. See id. When the defendant
later appeared for sentencing, however, he orally moved to withdraw
his guilty plea, stating that he had not been adequately informed of
unfavorable stipulations in the plea agreement. See id. Specifically,
the defendant argued that he did not understand at the time that he
entered the plea that he could not argue for a downward departure at
sentencing. See id. During the discussions on this issue, the district
court told the defendant that he "could appeal the sentencing find-
ings." Id. Although the defendant was given the opportunity to file a
motion to withdraw his plea, the parties instead agreed to modify the
agreement to permit both parties to argue for a departure from the
sentencing guidelines. See id. When the defendant reappeared for sen-
tencing, the district court informed the defendant that under Rule 32
of the Federal Rules of Criminal Procedure, he had the right to appeal
findings made by the district court regarding sentencing and that to
do so, the defendant had to file notice of appeal within ten days of the
hearing. See id. at 917. The government did not object to the district
court's statement, and the defendant responded when questioned by
the district court that he understood his right to appeal. See id.Although the Ninth Circuit recognized that the defendant entered
into the plea agreement knowingly and intelligently, the court found
that because of the district court's subsequent statements that the
defendant would be able to appeal his sentence, the defendant could
have had a reasonable expectation that he could appeal his sentence.
See id. The court also found that the defendant's statement to the dis-
5
trict court that he understood his right to appeal indicated that he
believed that he had a right to appeal and that he misunderstood the
substance of his plea agreement. See id. at 917-18. Finally, the court
found that the government's failure to object to the district court's
statement gave the defendant "no reason but to believe that the court's
advice on the right to appeal was correct." Id. at 918. The court con-
cluded that "[g]iven the district court judge's clear statements at sen-
tencing, the defendant's assertion of understanding, and the
prosecution's failure to object, . . . the district court's oral pronounce-
ment control[led] and the plea agreement waiver [was] not enforce-
able." Id. Although deciding a different but related issue, the Sixth
Circuit has quoted Buchanan with approval. See Everard v. United
States, 102 F.3d 763, 766 (6th Cir. 1996), cert. denied, 117 S. Ct.
1011 (1997).
We are not persuaded by the holding in Buchanan that a waiver of
a right to appeal contained in a plea agreement that has been entered
into knowingly and intelligently may be held unenforceable because
of subsequent erroneous and apparently inadvertent statements by the
district court to the effect that the defendant has a right to appeal.
Once a defendant has knowingly and intelligently waived his right to
appeal and that waiver is confirmed during a Rule 11 hearing, the
requirements for an effective waiver of appeal have been satisfied,
and the waiver should be enforced. See Attar, 38 F.3d at 731; Marin,
961 F.2d at 496. To hold otherwise ignores the purpose and implica-
tion of a Rule 11 hearing, which is to establish, on the record, the
knowing and intelligent nature of each guilty plea. See United States
v. Taylor, 984 F.2d 618, 621 (4th Cir. 1993). Therefore, we disagree
with the Ninth Circuit and hold that once an appeal waiver is estab-
lished to be knowing and intelligent pursuant to Rule 11, the waiver
may not be held unenforceable because of a district court's erroneous
statements at a subsequent proceeding that the defendant has a right
to appeal. In this case, since there is no evidence that appellant's
appeal waiver was less than knowing and intelligent and since the
voluntariness of appellant's guilty plea was confirmed during a Rule
11 hearing, the appeal waiver should be enforced notwithstanding the
district court's subsequent inadvertent statement that appellant had a
right to appeal his sentence.
In addition to arguing that the district court's statement nullified his
earlier appeal waiver, appellant asserts that even if his waiver of
6
appeal was valid, the sentence imposed by the district court is illegal
and a general appeal waiver does not bar an appeal of an illegal sen-
tence. Specifically, appellant asserts that his sentence is illegal
because it violates the sentencing guidelines and because the district
court lacked jurisdiction to sentence appellant as a juvenile under 18
U.S.C. § 5032. Neither of these arguments has merit.
As set forth above, an appeal waiver does not preclude a defendant
from arguing on appeal that his sentence is above the maximum pen-
alty authorized by statute or was based on a constitutionally imper-
missible factor, such as race. See Marin, 961 F.2d at 496. However,
an appeal waiver does preclude an argument that the district court
improperly applied the sentencing guidelines or violated a procedural
rule when imposing sentence. See Attar, 38 F.3d at 732. In this case,
the sentence imposed by the district court was well within the five-
year maximum sentence authorized under § 1163, and there is no alle-
gation that appellant's sentence was constitutionally impermissible.
Instead, appellant's asserted grounds for appeal fall within the range
of issues that may not be appealed once the defendant has entered a
knowing and intelligent waiver of appeal.*
_________________________________________________________________
*Section 5032 provides that a district court may not sentence a juve-
nile until it has received the juvenile's prior court records or a certifica-
tion that such records do not exist or are unavailable. See 18 U.S.C.
§ 5032. Although courts have vacated adjudications of delinquency on
direct appeal where there was no effort to deliver juveniles' prior court
records to the district court, see, e.g., United States v. Doe, 13 F.3d 302,
304-05 (9th Cir. 1993); United States v. M.I.M., 932 F.2d 1016, 1020 (1st
Cir. 1991), courts have also recognized that the record certification pro-
vision of § 5032 should be read to afford the government a limited
amount of flexibility, see United States v. Wong, 40 F.3d 1347, 1369 (2d
Cir. 1994); United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992).
In this case, although the district court never actually received appel-
lant's juvenile court records, those records were summarized in appel-
lant's presentence report, and appellant does not assert that this summary
was inaccurate. This error is, then, at most, a procedural error, and an
appeal based on this error is precluded where the defendant has waived
his right to appeal. See Attar, 38 F.3d at 732 (a defendant who signs a
general waiver of the right to appeal his sentence waives the right to
appellate review of his sentence on the ground that it results from a vio-
lation of a procedural rule). Thus, while appellant may have been able
7
III.
For the foregoing reasons, we hold that appellant knowingly and
intelligently waived his right to appeal his sentence. This appeal is,
therefore, dismissed.
DISMISSED
MURNAGHAN, Circuit Judge, dissenting:
I dissent. The majority decision represents a perversion of the crim-
inal justice system that I cannot endorse. In its decision today, the
majority holds that a waiver-of-appeal rights provision is enforceable
despite the fact that the district court in direct contravention of the
plea agreement including the waiver-of-appeal rights provision
informs the defendant that he has an absolute right to appeal and the
Government sits silently observing the entire proceeding without ever
raising an objection to the district court's obvious mistake.
I.
Undoubtedly, in the Fourth Circuit, a waiver-of-appeal rights pro-
vision in a valid plea agreement is enforceable against the defendant
so long as it is "the result of a knowing and intelligent decision to
forego the right to appeal." United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995) (quoting United States v. Attar, 38 F.3d
727, 731-33 (4th Cir. 1994)). In the instant case, paragraph 12 of the
plea agreement provided:
The defendant waives the right to contest either the convic-
tion or the sentence in any direct appeal or other post-
conviction proceeding, including any proceeding under 28
_________________________________________________________________
to successfully attack his sentence based on a violation of § 5032 in the
absence of an appeal waiver, in this case, he did waive his right to appeal
his sentence, and a failure to comply strictly with§ 5032's procedural
requirement is not the sort of error cognizable on appeal in the face of
a general appeal waiver.
8
U.S.C. § 2255. This waiver shall not apply to claims of inef-
fective assistance of counsel or prosecutorial misconduct.
Despite the above paragraph, at sentencing the district court twice
informed One Juvenile Male (1MJ) that he had the right to appeal.
The following exchange occurred between the district court and 1MJ
at the close of the sentencing:
COURT: [1MJ] you have an absolute right to appeal that
sentence. Now, you should talk to your attorney and he will
give you his opinion about what the chances you have con-
cerning this sentence. But, you do not have to take his
advice. You have an absolute right to appeal, if you choose
to do so. Do you understand that right?
1MJ: Yes, Your Honor.
The district court continued:
COURT: And if you cannot afford to appeal. If you decide
. . . to appeal and can't afford to, the cost of an appeal. You
may fill out an indigency affidavit and it will prove and you
may appeal at government expense.
1MJ: Yes, Your Honor.
(Emphasis added). At no time did the Government object to the dis-
trict court's oral pronouncements about 1MJ's ability to appeal, and
the procedural mechanisms for perfecting that appeal, despite the fact
that those pronouncements were in contravention of the plea agree-
ment.
Although an issue of first impression for the Fourth Circuit, as the
majority recognizes the Ninth Circuit has addressed the precise issue.
In United States v. Buchanan, 59 F.3d 914 (9th Cir. 1995), cert.
denied, 116 S.Ct. 430 (1996), despite a waiver of the appeal rights
contained in his plea agreement, the defendant appealed his sentence
arguing that the district court had erred in calculating his criminal his-
tory score. Id. at 915. The government filed a motion to dismiss the
appeal. Id.9
The court focused on the district court's oral pronouncements at the
defendant's sentencing hearings in which the district court stated,
despite the plea agreement, that the defendant had a right to appeal
his sentence. In light of the district court's statements, the court stated
that the defendant "could have had a reasonable expectation that he
could appeal his sentence." Id. at 917. Reasoning that a district court's
pronouncements should control, the court held that:
Litigants need to be able to trust the oral pronouncements of
district court judges. Given the district court's clear state-
ments at sentencing, the defendant's assertion of under-
standing, and the prosecution's failure to object, we hold
that in these circumstances, the district court's oral pro-
nouncements controls and the plea agreement waiver is not
enforceable.
Id. at 917.
I find the reasoning of Buchanan is persuasive, and the instant case
fits well within the rule announced in that case. See also Everard v.
United States, 102 F.3d 763, 766 (6th Cir. 1996) (addressing the situ-
ation when the district court's oral pronouncements are at odds with
the defendant's plea agreement, the court stated"[i]t is quite conceiv-
able in this situation that the defendant would not know whether his
waiver of the appeal in the plea agreement or the judge's statements
regarding his right to appeal controlled."). The majority casts aside
Buchanan reasoning that "[t]o hold otherwise ignores the purpose and
implication of a Rule 11 hearing, which is to establish, on the record,
the knowing and intelligent nature of a guilty plea." Majority Opinion
("Maj. Op.") at 6. In my view, the majority's holding today ignores
the purpose of our federal judiciary, which is to ensure that a criminal
defendant is sentenced in a just manner. Undoubtedly, federal judges
occasionally make mistakes and this case demonstrates such human
foibles. Nevertheless, this case is not about one district court judge's
inadvertence during the sentencing of 1MJ, rather, this case is about
whether the brunt of a district court's mistakes, coupled with the com-
plicity of the prosecution who never alerted the district court to its
error, should be borne by a criminal defendant. In effect, considering
the circumstances in which the district judge's remarks were made
10
and the government's complete failure to refute them, there was an
amendment of the plea agreement.
I agree with the Buchanan court's sentiment that "[l]itigants need
to be able to trust the oral pronouncements of district court judges."
Buchanan, 59 F.3d at 917. Here, two important constituent parts of
our criminal justice system, the federal district court and the Assistant
United States Attorney (AUSA), failed 1MJ. A judge engaged in sen-
tencing a defendant should be correct or if incorrect and the prosecu-
tion takes no steps to correct the judge, effectively a new agreement,
contract, or understanding comes into existence replacing the earlier
plea agreement's waiver-of-appeal rights provision. It strikes me as
patently odd that on one hand the defendant can be told by a federal
district court judge that he has an absolute right to appeal, and then
a federal court of appeals dismisses his appeal on the grounds that he
had no right to appeal.
II.
I note one other disagreement with the majority. Even if the
waiver-of-appeal rights provisions was applicable to this appeal, 1MJ
may always challenge the jurisdiction of the district court to sentence
him regardless of the waiver. 1MJ argues that the district court did not
have jurisdiction to sentence him because his juvenile records were
never presented to the district court and no explanation for this
absence of certification existed in violation of 18 U.S.C. § 5032. The
government argues that it complied with § 5032 because 1MJ's refer-
ence to his juvenile records was contained in the presentence report,
which was available to the court prior to sentencing 1MJ.
18 U.S.C. § 5032 provides, in relevant part:
A juvenile shall not be transferred to adult prosecution nor
shall a hearing be held under section 5037 (disposition after
a finding of juvenile delinquency) until any prior juvenile
court records of such juvenile have been received by the
court, or the clerk of the juvenile court has certified in writ-
ing that the juvenile has no prior record, or the juvenile's
record is unavailable and why it is unavailable.
11
18 U.S.C. § 5032 (1985 and Supp. 1997) (emphasis added).1 Pursuant
to 18 U.S.C. § 5037, a disposition hearing includes a sentencing. See
§ 5037 ("If the court finds a juvenile to be a juvenile delinquent, the
court shall hold a disposition hearing concerning the appropriate dis-
position no later than twenty court days after the juvenile delinquency
hearing . . .").
In the instant case, a summary of 1MJ's juvenile records, but not
a verbatim copy, was included within the PSR. As the majority
acknowledges, to date, the district court has never received 1MJ's
actual juvenile records. Instead of establishing the validity of the gov-
ernment's employed practice of "complying" with § 5032's require-
ment through the use of summaries, the majority, confining itself to
a footnote, terms the government's failure to comply with § 5032 as
"at most, a procedural error," and hence, concludes that such an error
would be included with those errors unappealable due to waiver-of-
appeal rights provision. Thus, the majority fails to pass upon the
validity of the government's procedure, merely citing with approval
Wong v. United States, 40 F.3d 1347, 1369 (2d Cir. 1994), for the
proposition that the records certification dictated in § 5032 should
"afford the government a limited amount of flexibility." Maj. Op. at
7-8 n.*. How much flexibility? The majority does not tell.2
_________________________________________________________________
1 Prior to 1994, this same paragraph provided:
Any proceedings against a juvenile under this chapter or as an
adult shall not be commenced until any prior juvenile court
records of such juvenile have been received by the court, or the
clerk of juvenile court has certified in writing that the juvenile
has no prior record, or that the juvenile's record is unavailable
and why it is unavailable.
18 U.S.C. § 5032 (1985) (emphasis added).
In 1994, with the passage of the "Juvenile Prosecution Act of 1994",
Congress amended 18 U.S.C. § 5032 by striking "Any proceedings
against a juvenile under this chapter or as an adult shall not be com-
menced until" and inserting "A juvenile shall not be transferred to adult
prosecution nor shall a hearing be held under section 5037 (disposition
after a finding of juvenile delinquency) until".
2 The majority's citation to United States v. Wong, 40 F.3d 1347 (2d
Cir. 1994), and United States v. Parker, 956 F.2d 169 (8th Cir. 1992),
are not persuasive because in Wong and Parker the government did
eventually comply with the records certification through the provision of
the juvenile records to the court, so the precise issue involved in the
instant case is not resolved by reliance on either of those decisions.
12
In any event, the majority's labeling of the government's failure to
comply with § 5032 as a "procedural error" is untenable. A plain read-
ing of the statute reveals that the records certification requirement is
a jurisdictional prerequisite to the district court's constitutional ability
to sentence 1MJ. Every circuit to address the question has similarly
so concluded, including the Wong court cited with approval by the
majority. See Wong, 40 F.3d at 1363 ("Certification is a prerequisite
to the exercise of federal jurisdiction over juveniles."); Doe, 13 F.3d
at 304 ("Certification is a jurisdictional requirement. . . . Compliance
with [§] 5032's jurisdictional prerequisites is necessary for federal
court jurisdiction to exist"); United States v. Chambers, 944 F.2d
1253, 1258-60 (6th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct.
1217 (1992); United States v. One Juvenile Male, 923 F.2d 614, 620
(8th Cir. 1991) ("no proceeding may be commenced against a juvenile
under section 5032 until the juvenile records or certification of the
appropriate authority are received by the district court."); United
States v. M.I.M., 932 F.2d 1016, 1019 (1st Cir. 1991) (addressing
government's failure to comply with § 5032 stated "[p]lainly, this
juvenile case did not proceed in accordance with the statute's mandate
and therefore the jurisdiction of the district court was not properly
invoked."); United States v. Brian N., 900 F.2d 218, 221 (10th Cir.
1990) (same). The majority's skirting of the § 5032 issue is unwar-
ranted. As the AUSA noted during oral argument, the U.S. Attorney's
Office has been "complying" with § 5032 in this manner as matter of
practice. This court, at a minimum, should determine whether this
manner of "compliance" was valid or not.
As 1MJ has raised a jurisdictional challenge to the district court's
ability to sentence him in the first instance, the issue is properly
appealable regardless of the enforceability of the waiver-of-appeal
rights provision. Hence, I disagree from the majority's conclusion that
§ 5032 presents a procedural error not "cognizable on appeal in the
face of general waiver." Maj. Op. at 7-8 n.*. As the majority has rec-
ognized, as well as with the waiver-of-appeal rights provision con-
tained in 1MJ's plea agreement, a defendant does not waive all his
rights. A defendant may always raise an ineffective assistance of
counsel claim, or that his sentence is illegal, or based on an impermis-
sible factor, such as race. See United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992). Certainly included within those rights which can-
not be waived is a challenge to the court's jurisdiction in the first
13
instance to preside over the sentencing. Such a challenge would not
be precluded by the waiver-of-appeal rights provision.
This case is not about whether 1MJ suffered any prejudice as a
result of the government's method of attempting to provide his juve-
nile records. Rather, the case presents the more fundamental question
of whether the district court, without receiving 1MJ's juvenile records
had jurisdiction to sentence 1MJ in the first place.
It may well be that when called to pass upon the government's
admitted practice of providing the juvenile's records in the form of a
summary in a presentence report to the district court, this court may
conclude that such a practice is actually in compliance with § 5032.
Nevertheless, the court should, at a minimum, either sanction or dis-
approve of such a practice, as it is for the federal courts, not the gov-
ernment, to interpret a federal statute and to give it a meaning which
may well be at odds with the statutory language.
Because I believe that the district court's oral pronouncements
negated the waiver-of-appeal rights provision contained in 1MJ's plea
agreement with the government, I would address 1MJ's other issues
raised on appeal. In addition, even if the waiver-of-appeal rights pro-
vision is enforceable, this court should address the § 5032 argument
advanced by 1MJ because a defendant may always challenge the
court's jurisdiction to sentence him regardless of the presence of a
waiver-of-appeal rights provision. I, therefore, dissent.
14