United States v. Antonio Reeves

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2356
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Antonio Gromyko Reeves, also known * Eastern District of Missouri.
as, Meckeo O. Scott, *
*
Appellant. *
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Submitted: February 14, 2005
Filed: June 10, 2005
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Before WOLLMAN, McMILLIAN and BENTON, Circuit Judges.
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McMILLIAN, Circuit Judge.
Antonio Gromyko Reeves appeals from a final judgment entered in the District
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Court for the Eastern District of Missouri following his plea of guilty to distribution
of 5 or more grams of crack cocaine, in violation of 21 U.S.C. § 841. Reeves argues
that the district court erred in sentencing him as a career offender under U.S.S.G.
§ 4B1.1. We dismiss the appeal.
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The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
In January 2004, Reeves and the government entered into a written plea
agreement, in which Reeves admitted that he had sold over 6 grams of crack cocaine
to an undercover officer. Reeves also "admitt[ed] that he ha[d] two prior felony
convictions of either a crime of violence or a controlled substance offense," citing a
1997 conviction for attempted arson and a 1997 conviction for sale of a controlled
substance. In the plea agreement, the government noted its belief that Reeves should
be sentenced under § 4B1.1, which, as relevant here, provides that a defendant shall
be sentenced as a career offender if the offense of conviction is a felony drug
conviction and the defendant has "at least two prior felony convictions of either a
crime of violence or a controlled substance offense." As applied to Reeves,
application of § 4B1.1 resulted in an offense level of 34 and a criminal history
category of VI, with a sentencing range of 262 to 327 months. Despite the admission
of his two prior felony convictions, in the plea agreement, Reeves reserved the "right
to argue the applicability of U.S.S.G. § 4B1.1 at the time of sentencing."
In relevant part, the plea agreement also provided:
The defendant has been fully apprised by defense counsel of [his] rights
to appeal and fully understands the right to appeal the sentence under
Title 18, United States Code, Section 3742. However, in the event the
Court accepts the plea, as part of this agreement, both the defendant and
the government hereby waive all rights to appeal all non-jurisdictional
issues including, but not limited to . . . whatever sentence is imposed,
any issues relating to the establishment of the Total Offense Level or
Criminal History Category determined by the Court, except that the
parties reserve the right to appeal from any Chapter 5 upward or
downward departure from the Guidelines range if such departure is not
agreed to in this document . . . The Guidelines range will be determined
by the District Court and shall not be subject to appeal.
(emphasis added).
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At the change of plea hearing, the following colloquy occurred:
Court: By signing this [plea] agreement, Mr. Reeves, you have waived
a number of your appellate rights. You still reserve the right to appeal
if I should sentence you in an upward departure from the Sentencing
Guidelines range. You still have that right to appeal. Do you
understand?
Reeves: Yes, sir.
Court: You, by signing this agreement, waive all rights to contest the
conviction or sentence except for grounds of prosecutorial misconduct
or ineffective assistance of counsel at the time of sentencing in any post-
conviction . . . or by means of any petition for relief of any description.
Other than those reserved rights, all of your appellate rights are waived.
Do you understand?
Reeves: Yes, Sir.
Over Reeves's objection, the district court sentenced Reeves as a career
offender under § 4B1.1. The district court rejected his argument that the 1997
conviction for attempted arson was not a crime of violence, noting that § 4B1.2 listed
arson as a crime of violence and provided that a crime of violence included an
"attempt[] to commit such an offense." After deducting three levels for acceptance
of responsibility, the district court calculated Reeves's sentencing guidelines range
(based on an offense level of 31 and criminal history category of VI) as 188 to 235
months and sentenced him to 188 months imprisonment.
On appeal, Reeves challenges his sentence, arguing that the district court erred
in applying § 4B1.1. The government argues that Reeves waived his right to appeal
his sentence. We agree with the government. "When reviewing a purported waiver,
we must confirm that the appeal falls within the scope of the waiver and that both the
waiver and plea agreement were entered into knowingly and voluntarily." United
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States v. Andis, 333 F.3d 886, 889-90 (8th Cir.) (en banc), cert. denied, 540 U.S. 997
(2003) (Andis). In determining the scope of an appeal waiver, we, of course, must
look to the language of the waiver. For example, in United States v. Lea, 400 F.3d
1115, 1116 (8th Cir. 2005), this court held that the language of a waiver that allowed
the defendant to appeal a sentencing issue not specifically addressed in the waiver did
not preclude a challenge to his sentence under United States v. Booker, 125 S. Ct. 738
(2005) (Booker). In contrast, the language of the waiver in this case is very broad.
Reeves agreed that the "Guidelines range . . . shall not be subject to appeal" and to
"waive all rights to appeal . . . whatever sentence is imposed," reserving only the
right to appeal a Chapter 5 upward departure. Thus, Reeves's challenge to the
application of § 4B1.1 falls within the scope of the waiver. See Andis, 333 F.3d at
892 (waiver of "all rights to appeal whatever sentence is imposed" foreclosed
challenge to conditions of supervised release).
In addition, Reeves does not dispute that at the time he entered into the plea
agreement and waiver, he did so knowingly and voluntarily. As noted above, at the
change of plea hearing the district court engaged in a colloquy pursuant to Fed. R.
Crim. P. 11(b)(1)(N) to ensure that the "plea agreement and corresponding waiver
[were] entered into knowingly and voluntarily." Id. at 890.
Reeves suggests that the waiver is no longer valid in light of United States v.
Booker. His argument is without merit. "Unless expressly reserved, . . . , the right
to appellate relief under Booker is among the rights waived by a valid appeal waiver,
even if the parties did not anticipate the Blakely/Booker rulings." United States v.
Fogg, No. 04-2723, 2005 WL 1186535, at *2 (8th Cir. May 20, 2005) (citing United
States v. Killgo, 397 F.3d 628, 629 n.2 (8th Cir. 2005) ("fact that [a defendant] did not
anticipate the . . . Booker ruling[] does not place the issue outside the scope of his
waiver")). Thus, Reeves's waiver of "all rights . . . to appeal any sentence imposed
. . . certainly is broad enough to cover any issues arising from . . . Booker." United
States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005) (Rubbo); see also United States
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v. McKinney, No. 04-41223, 2005 WL 997153, at *3 n.5 (5th Cir. Apr. 15, 2005)
("Blakely and Booker do not alter the plain meaning of appeal-waiver provisions in
valid plea agreements"); United States v. Lockett, 406 F.3d 207, 213-14 (3rd Cir.
2005) (Lockett) (broad appeal waiver foreclosed Booker claim); United States v.
Morgan, 406 F.3d 135, 137 (2d Cir. 2005) ("appeal waiver is enforceable and
forecloses the right to appeal under Booker/FanFan"); United States v. Green, 405
F.3d 1180, 1189 (10th Cir. 2005) (Green) ("Booker arguments may fall within the
scope of a defendant's waiver of his or her appellate rights"); United States v.
Bownes, 405 F.3d 634, 636 (7th Cir. 2005) ("appeal waivers worded as broadly as
this one are effective even if the law changes in favor of the defendant after
sentencing"); United States v. Bradley, 400 F.3d 459, 465 (6th Cir. 2005) (Bradley)
(enforcing appeal waiver in the "aftermath of Booker").
In addition, Booker does not render Reeves's plea involuntary or unintelligent.
"'[A] voluntary plea of guilty intelligently made in the light of the then applicable law
does not become vulnerable because later judicial decisions indicate that the plea
rested on a faulty premise.'" United States v. Morgan, 958 F.2d 847, 849 (8th Cir.
1992) (quoting Brady v. United States, 397 U.S. 742, 757 (1970)); see also Lockett,
406 F.3d at 213 (rejecting argument that appeal waiver was unknowing "because
[defendant] did not know at the time he pleaded guilty that the Supreme Court would
later hold [in Booker] that the Sentencing Guidelines are advisory"); Green, 405 F.3d
at 1191 (holding "pre-Booker waiver of right to appeal was knowing and voluntary");
Bradley, 400 F.3d at 464-65 (having obtained decrease in number of counts against
him, defendant cannot undo appeal waiver on basis of Booker); United States v.
Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (argument that "Booker renders [a] plea
involuntary" was frivolous).
Reeves also suggests that this court should not enforce the waiver because his
sentence is illegal under Booker. It is true that we will "refuse to enforce an
otherwise valid waiver if to do so would result in a miscarriage of justice," Andis, 333
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F.3d at 891, and that a "defendant has the right to appeal an illegal sentence." Id. at
891. However, contrary to Reeves's argument, the district court did not violate his
Sixth Amendment rights by sentencing him as a career offender under § 4B1.1 based
on its finding that the 1997 conviction for attempted arson was a crime of violence.
In Booker, the Supreme Court "expressly confirmed the continuing validity of its
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the fact of a prior
conviction need not be submitted to a jury or proved beyond a reasonable doubt."
United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). We also "have
rejected the argument that the nature of a prior conviction is to be treated differently
from the fact of a prior conviction." Id. Indeed, "[t]he Supreme Court's post-Booker
opinion in Shepard v. United States[, 125 S. Ct. 1254 (2005),] lends further support
to the rule that the sentencing court, not a jury, must determine whether prior
convictions qualify as violent felonies." Id.
Reeves also argues that after Booker his sentence was illegal because the
district court sentenced him under a mandatory Guidelines system, rather than under
an advisory Guidelines system, as Booker directs. See Booker, 125 S. Ct. at 757. We
cannot address this argument. This court has made clear that "the illegal sentence
exception to the general enforceablility of an appeal waiver is an extremely narrow
exception." 333 F.3d at 892. In Andis, we stated: "Any sentence imposed within the
statutory range is not subject to appeal." Id. Here, Reeves's sentence of 188 months
is within the statutory range of 5 to 40 years specified in § 841(b)(1)(B).2
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In United States v. Booker, 125 S. Ct. 738 (2005), as in Blakely v.
Washington, 124 S. Ct. 2531, 2537 (2004), the Supreme Court "ma[de] clear that the
'statutory maximum' for Apprendi [v. New Jersey, 530 U.S. 466 (2000)] purposes is
the maximum sentence a judge may impose solely on the basis of facts reflected in
the jury verdict or admitted by the defendant." 125 S. Ct. at 749. Because this case
does not implicate the Sixth Amendment concerns of Booker, we do not address
whether the Apprendi/Booker definition of the term "statutory maximum" alters the
plain meaning of the term (i.e., the maximum sentence a statute authorizes a court to
impose) as used in the appellate waiver context. However, we note courts have held
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Accordingly, we dismiss the appeal.
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that Apprendi/Booker definition of the term does not apply in the context of
enforceability of appeal waivers. See United States v. Green, 405 F.3d 1180, 1192
(10th Cir. 2005) (noting Supreme Court qualified definition "with the phrase 'for
Apprendi purposes'" and definition "has only been applied in sentencing guidelines
cases"); United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005) (noting
Apprendi/Booker definition "had nothing to do with the scope of appeal waivers");
United States v. West, 392 F.3d 450, 460 (D.C. Cir. 2004) (rejecting "exceedingly
subtle" Apprendi definition in favor of plain meaning of "statutory maximum" in
interpreting appeal waiver).
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