United States v. Joseph Laslie

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2013 Decided May 17, 2013
No. 11-3040
UNITED STATES OF AMERICA,
APPELLEE
v.
JOSEPH A. LASLIE, ALSO KNOWN AS JOSEPH LASLIE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00057-1)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
David C. Rybicki, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and David
B. Kent, Assistant U.S. Attorneys.
Before: HENDERSON, BROWN and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Joseph Laslie pled guilty to
crossing state lines to have sex with a minor. He appeals his
sentence, arguing that the district court erred when it applied a
sentencing enhancement based on his use of a computer to
facilitate his crime. We hold that Laslie waived this challenge.
He stipulated to the enhancement in his plea agreement and
raised no objection to its inclusion in the district court’s
calculation of his sentence. Therefore, we affirm the sentence
imposed by the district court.
I
On January 14, 2010, an undercover Metropolitan Police
Department detective dangled the following bait in an Internet
chat room frequented by pedophiles: “Virginia dc md area
incest 39 perv male into no limit fun anyone in the area.” The
detective received a response the next day: “Hey . . . I am a 41
yr old straight male in VA . . . message me maybe we can share
some stories and ideas.” The response came from an individual
with the Yahoo! Messenger screen name “joefburg.” This, it
turned out, was Laslie, a forty-one year-old man living in
Fredericksburg, Virginia.
Over the next week and a half, Laslie and the detective
exchanged numerous messages through Yahoo! Messenger.
The detective claimed that he was sexually active with his
girlfriend’s daughters, aged eleven and thirteen. The girlfriend
and the daughters were, of course, fictitious. After Laslie
recounted a story about sexually abusing a seven year-old girl a
decade before, the detective suggested that he could arrange for
Laslie to have sex with the eleven year-old. Laslie responded
enthusiastically. During chats on January 19 and 25, Laslie and
the detective made plans to meet at a bar in the District of
Columbia. From there, they planned to go to the detective’s
apartment, where Laslie would have sex with the child. On
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January 26, Laslie called the detective to confirm, then took the
Metrorail from suburban Virginia into the District. The police
arrested Laslie when he arrived at the bar. He promptly
admitted that he was “joefburg.”
On March 22, 2010, Laslie pled guilty to one count of
travel with intent to engage in illicit sexual conduct, in
violation of 18 U.S.C. § 2423(b). In his plea agreement, Laslie
and the government stipulated to a Sentencing Guidelines base
offense level of 30, subject to a four-level enhancement
because his offense involved a victim under the age of twelve,
U.S.S.G. § 2A3.1(b)(2)(A), an additional two-level
enhancement because Laslie used a computer to commit his
crime, id. § 2A3.1(b)(6)(B), and a three-level reduction
because he accepted responsibility for his wrongdoing. Id.
§ 3E1.1. Following Laslie’s guilty plea, the United States
Probation Office issued a Presentence Investigation Report
(PSR), which calculated Laslie’s total offense level in the same
manner as the parties did in the plea agreement, resulting in a
recommended Guidelines range of 135 to 168 months’
imprisonment.
At Laslie’s sentencing hearing on April 6 and 7, 2011, his
counsel argued that Laslie should be sentenced below his
applicable Guidelines range, but twice acknowledged that the
Guidelines calculations in the plea agreement and the PSR
were correct – enhancements and all. Tr. 4/6/11, at 46-47; Tr.
4/7/11, at 23. The district court declined the invitation to depart
from the Guidelines and sentenced Laslie to 135 months, at the
low end of his range. Id.
Laslie filed a notice of appeal on April 27, 2011. We have
jurisdiction under 18 U.S.C. § 3742(a).
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II
Laslie’s challenge to his sentence rests on a single
argument: that the district court erred in applying the two-level
enhancement because his offense did not involve the use of a
computer “to persuade, induce, entice, or coerce a minor to
engage in prohibited sexual conduct.” U.S.S.G.
§ 2A3.1(b)(6)(B). Laslie raises this argument for the first time
on appeal; the district court had no occasion to pass on it. The
question is, did Laslie forfeit the argument, or did he waive it?
Laslie argues that he merely forfeited it, and thus we should
review the enhancement for plain error. We decline to do so,
however, because we agree with the government: Laslie
waived his challenge.
The distinction between waiver and forfeiture is
significant. “Whereas forfeiture is the failure to make a timely
assertion of a right, waiver is the intentional relinquishment of
a known right.” United States v. Olano, 507 U.S. 725, 733
(1993) (internal quotation marks omitted). Forfeiture occurs
when “silence on the part of the appealing party has prevented
examination by the trial court,” In re Sealed Case, 356 F.3d
313, 318 (D.C. Cir. 2004) (citation omitted), and our review is
for plain error. FED. R. CRIM. P. 52(b). By contrast, waiver is
intentional, and “extinguishes an error so that there is no
review, because the defendant has knowingly and personally
given up the waived right.” In re Sealed Case, 356 F.3d at 317(citation omitted).
Laslie did not merely fail to object to the enhancement; his
decision not to challenge the enhancement was deliberate.
Starting with his plea agreement and continuing through filings
and arguments at his sentencing hearing, Laslie affirmed that
the district court should use the enhancement in calculating his
Guidelines range. His focus was elsewhere, on persuading the
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court to sentence him outside of the Guidelines. We find
Laslie’s actions, described below, sufficient to constitute
waiver.
At his plea hearing, Laslie told the magistrate judge
presiding over the hearing that he had reviewed the plea
agreement with his counsel, understood it fully, and agreed to
its terms. The plea agreement included a Statement of Offense,
signed by Laslie, describing how he used a computer to carry
out his crime. He admitted that during online chats, he told the
detective he wanted to have sex with the eleven year-old and
discussed traveling to the District to do so. Laslie and the
government relied upon these admissions to stipulate to
offense-level adjustments, including the enhancement he now
challenges.
At every subsequent turn before the sentencing court,
Laslie reaffirmed that the enhancement should be applied in
determining his Guidelines range. He did not object to the
PSR, which applied the enhancement. His sentencing
memorandum, in fact, stated that the PSR’s Guidelines
calculations, including the enhancement, “technically
appl[ied].” Def.’s Mem. in Aid of Sentencing at 2-3, United
States v. Laslie, Cr. No. 10-057 (D.D.C. Oct. 5, 2010). And, at
the sentencing hearing, with Laslie present, his attorney twice
recognized that the stipulated Guidelines calculations in the
plea agreement were accurate and reliable.
Both the government and the district court relied upon
Laslie’s repeated affirmations. The government made no
specific factual proffer to support the enhancement, beyond
Laslie’s Statement of Offense, and directed no argument
towards its application. Understandably, the court treated the
issue as resolved and made no explicit findings beyond
adopting the PSR. This court does not allow parties to reopen
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issues waived by stipulation at trial. Similarly, we will not
review a belated challenge on an issue a party agreed not to
dispute in sentencing proceedings below. See United States v.
Harrison, 204 F.3d 236, 240 (D.C. Cir. 2000) (“Upon entering
into a stipulation on an element, a defendant waives his right to
put the government to its proof of that element.”).
To be clear, our holding is based on both the stipulation in
Laslie’s plea agreement and his subsequent course of conduct
in the sentencing proceedings. We need not decide whether the
stipulation in Laslie’s plea agreement was sufficient to
constitute waiver, given his willingness to reinforce the
stipulation at every turn prior to sentencing. We note that both
the Seventh and Eighth Circuits would find waiver based upon
the stipulation in the plea agreement alone. See, e.g., United
States v. Scott, 657 F.3d 639, 640 (7th Cir. 2011) (per curiam);
United States v. Barrett, 173 F.3d 682, 684 (8th Cir. 1999)
(holding that a defendant is barred from “challeng[ing] an
application of the Guidelines to which he agreed in a plea
agreement (unless he proves the agreement invalid or succeeds
in withdrawing from it)”). The Second Circuit would not. See
United States v. Granik, 386 F.3d 404, 412 & n.6 (2d Cir.
2004) (“[A] stipulation in a plea agreement, although not
binding, may be relied upon in finding facts relevant to
sentencing.”). But the Second Circuit has recognized waiver
based upon defendants’ conduct similar to Laslie’s after he
entered his plea. See United States v. DeJesus-Concepcion,
607 F.3d 303, 305 (2d Cir. 2010) (per curiam) (holding that the
defendant waived any challenge to the assessment of a criminal
history point where he “not only declined to contest” the
assessment, “but expressly acknowledged” that his conduct
warranted it); United States v. Jackson, 346 F.3d 22, 24 (2d
Cir. 2003) (holding that the defendant waived his challenge to
a four-level enhancement by expressly conceding that it
applied to his offense).
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Laslie argues that finding waiver would run afoul of this
court’s decision in United States v. Accardi. 669 F.3d 340(D.C. Cir. 2012). In Accardi, the government argued that a
defendant had waived his right to appeal a term of a supervised
release imposed after a lengthy imprisonment because he had
stated at sentencing that he would “take” lifetime supervised
release in lieu of prison. Id. at 344. We easily found that the
defendant had not waived the right of appeal; the sentence he
got (one hundred months’ imprisonment plus forty years’
supervised release) was very different from the one he told the
court he would accept (lifetime supervised release with no
prison). Id. The Accardi court took the opportunity to discuss
appellate waivers in more general terms, explaining that “[a]
defendant may waive his right to appeal his sentence as part of
a plea bargain only if the waiver is knowing, intelligent, and
voluntary.” Id. (internal quotation marks omitted). And we
observed that “[i]n the context of a plea bargain, such a
determination is usually made at the plea hearing, at which the
court can fully explain the consequences of the waiver by
informing the defendant of exactly what rights he is giving up
and what rights he retains.” Id. (emphasis added) (citation
omitted).
Laslie takes Accardi to mean that any waiver associated
with a plea must be made personally, on the record, and in open
court. Tr. 1/15/13, at 4:1-18. But our waiver analysis has never
relied on such formalities. “[A]n anticipatory waiver – that is,
one made before the defendant knows what the sentence will
be – is nonetheless a knowing waiver if the defendant is aware
of and understands the risks involved in his decision.” In re
Sealed Case, 702 F.3d 59, 63 (D.C. Cir. 2012) (internal
quotation marks omitted). We require that “the record show[]
that [the defendant] knows what he is doing and his choice is
made with eyes open.” United States v. Guillen, 561 F.3d 527,
529-30 (D.C. Cir. 2009) (internal quotation marks omitted). Cf.
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In re Sealed Case, 702 F.3d at 63-64 (relying on terms of
written plea agreement to find waiver invalid). We declined to
find waiver in Accardi because the defendant never, in any
form, expressed a willingness to abide by a sentence of both
imprisonment and supervised release. Accardi, 669 F.3d at 344
(“Nowhere did he indicate his willingness to accept the
sentence he now challenges . . . .”). We noted that waiver is
“usually made at the plea hearing,” but we did not state that
waiver would be effective only if it was the subject of a specific
allocution at that hearing. Thus, Accardi does not trouble our
holding: that the stipulation in Laslie’s plea agreement and his
subsequent affirmations constitute sufficient evidence that
Laslie intentionally relinquished his challenge to the
enhancement.
Unlike in Accardi, the record before us is unequivocal.
Beginning with his plea agreement, Laslie repeatedly affirmed
that his Guidelines range should be calculated with a two-level
enhancement to his offense level under U.S.S.G.
§ 2A3.1(b)(6)(B). He therefore waived his challenge to the
enhancement.
III
For the foregoing reasons, the district court’s sentence is
affirmed.
So ordered.