Filed: Aug. 17, 2010
Latest Update: Feb. 21, 2020
Summary: you're agreeing here not to take any appeal of your, guilty plea and conviction, and you're also, agreeing that you won't appeal your sentence as, long as it's not more than 120 months or ten years.both cases, Donath represented himself in Maine district court;enforcement of the waiver .F.3d at 22.
United States Court of Appeals
For the First Circuit
No. 09-2287
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT DONATH,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock. Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
William Maselli was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, were on brief for appellee.
August 17, 2010
LYNCH, Chief Judge. In November 2008, Robert Donath
agreed to plead guilty to three counts charging his participation
in a conspiracy to distribute cocaine and other drugs in the small
town of Lincoln, Maine. As part of his plea agreement, Donath
expressly waived his right to appeal his plea or sentence if it did
not exceed 120 months. The district court accepted Donath's plea
and sentenced him to a below-guidelines term of 90 months'
imprisonment.
Nonetheless, Donath appeals, urging that his appeals
waiver is unenforceable and that the district court erred when
calculating his sentence by mischaracterizing his prior crimes. He
says that error constituted a miscarriage of justice, which excuses
his waiver of appeal. We find the waiver enforceable and dismiss
the appeal.
I.
Donath was indicted in September 2008 with fifteen other
suspected participants in the drug conspiracy. The indictment
charged Donath in three counts, alleging (1) conspiracy to
distribute and possess with intent to distribute 5 kilograms or
more of cocaine, 50 grams or more of cocaine base, and an
unspecified quantity of oxycodone; (2) conspiracy to distribute and
possess with intent to distribute 500 grams or more of cocaine and
5 grams or more of cocaine base; and (3) a separate conspiracy
to distribute and possess with intent to distribute 500 grams or
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more of cocaine and 5 grams or more of cocaine base; all in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
Two months later, in early November 2008, Donath reached
an agreement with federal prosecutors to plead guilty to all counts
against him. Donath's written plea agreement described the charges
and the penalties he faced. As detailed in the agreement,
conviction on Count 1 carried a mandatory minimum of ten years'
imprisonment with a maximum sentence of life in prison; conviction
on Counts 2 and 3 meant a mandatory minimum of five years'
imprisonment with a maximum sentence of forty years in prison. The
agreement also specified fines, special assessments, and supervised
release terms associated with the charges.
In exchange for Donath's guilty plea and further
cooperation, the government agreed to recommend that the court give
Donath a three-level offense-level reduction for acceptance of
responsibility, pursuant to U.S.S.G. section 3E1.1.
The plea agreement included an explicit waiver of
Donath's right to appeal his plea or sentence, which read, in
relevant part,
Appeal Waivers. Defendant is aware that Title 18,
United States Code, Section 3742 affords a
defendant the right to appeal the sentence imposed.
Knowing that, Defendant waives the right to appeal
the following:
A. Defendant's guilty plea and any other
aspect of Defendant's conviction in the
above-captioned case; and
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B. A sentence of imprisonment that does
not exceed 120 months.
. . . .
The number of months mentioned in this
paragraph does not necessarily constitute an
estimate of the sentence that the parties expect
will be imposed.
The agreement was not conditioned on, and in fact did not mention,
the issue of Donath's eligibility for 18 U.S.C. § 3553(f)'s "safety
valve" adjustment. Under that provision, a court may give
defendants who meet certain conditions, among them that they "not
have more than 1 criminal history point," a reduction from an
otherwise mandatory minimum sentence.1 Id. § 3553(f)(1).
Donath signed the agreement on November 5, 2008, as did
his counsel, who affirmed that, to his knowledge, "Donath's
decision to enter into this Agreement [wa]s an informed and
voluntary one."
As part of this agreement, which was put on the public
docket, Donath also signed a supplemental agreement, which provided
him with letter immunity in exchange for his "full and truthful
cooperation." This agreement was put under seal, presumably to
protect Donath. The supplemental agreement expressly incorporated
1
The "other conditions are that the defendant not use
violence or possess a weapon, that the offense not result in death
or serious injury, that the defendant not organize the offense or
engage in a continuing criminal enterprise, and that the defendant
cooperate with the government." United States v. Maldonado, No.
09-1626, 2010 WL 2898250, at *1 n.1 (1st Cir. July 26, 2010)
(citing 18 U.S.C. § 3553(f)(2)-(5)).
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the terms of the publicly filed agreement. The government further
agreed to "make known [Donath's] cooperation" upon Donath's request
but did not commit the government to seeking a safety-valve
reduction. Donath thus knew that if the court at sentencing
assigned him more than one criminal-history point he would be
ineligible for safety-valve relief. He also knew that there was no
agreement on this and that he had waived his right to appeal any
sentence the court would impose of 120 months or fewer.
On February 25, 2009, Donath pled guilty in the district
court. During Donath's plea colloquy, he confirmed that he
understood the terms and conditions of his plea agreement and that
the agreement was not binding on the court as to sentencing
guidelines calculations. The district court explicitly detailed
the consequences of Donath's plea waiver, noting that although
Donath ordinarily would have the right to appeal,
you're agreeing here not to take any appeal of your
guilty plea and conviction, and you're also
agreeing that you won't appeal your sentence as
long as it's not more than 120 months or ten years.
In other words, if I sentence you at 120 months or
less, I'm the last judge in your case and you're
agreeing that you'll not be able to overturn what I
do.
When the court asked Donath if he understood the waiver, Donath
responded that he did. After further colloquy on other issues, the
court accepted Donath's guilty plea.
Donath appeared for sentencing on September 8, 2009. At
the outset of the proceedings, the district court noted that the
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sole disputed issue was the presentence report's ("PSR") assignment
of three criminal-history points to Donath, which precluded his
eligibility for safety-valve relief. See 18 U.S.C. § 3553(f)(1).
Donath's objection to the PSR focused on its assignment of two
criminal-history points for misdemeanor "Criminal Mischief"
convictions in December 1998 and April 2001.2 The first of these
convictions was for breaking a window. The second was for
"recklessly damag[ing] and destroy[ing] tires and property." In
both cases, Donath represented himself in Maine district court; the
state court assessed him a $150 fine for the first conviction and
a $150 fine and $365 in restitution for the second.
Donath argued that these convictions were minor offenses,
which, under section 4A1.2(c)(1) of the guidelines, should not
yield criminal-history points. Although misdemeanor convictions
are generally counted in defendants' criminal histories, section
4A1.2(c) provides an exception when (1) the sentence for the past
conviction was less than one year's probation or thirty days'
imprisonment and (2) the past offense is one of or is "similar to"
certain offenses listed in the guideline. U.S.S.G. § 4A1.2(c)(1);
see also United States v. Matos, No. 09-1178, 2010 WL 2674483, at
2
Because the PSR's assignment of a third criminal-history
point for a 2009 Maine conviction for "Obstruction of Government
Administration" would not affect Donath's eligibility for safety-
valve relief if both the criminal mischief convictions were
counted, see 18 U.S.C. § 3553(f)(1), the district court found "it
unnecessary to resolve that issue."
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*7 (1st Cir. July 7, 2010). Donath claimed that his criminal
mischief convictions were similar to the listed offense of
"disorderly conduct or disturbing the peace."
The district court rejected Donath's argument that he
should not receive criminal-history points for these prior
convictions. The district court considered United States v. May,
343 F.3d 1 (1st Cir. 2003), which compared criminal mischief and
disorderly conduct under Maine law and held that statutory
differences, as well as May's offense conduct, rendered the
offenses dissimilar for purposes of section 4A1.2(c)(1).
Id. at
10. The district court explained that May's analysis of Maine law,
as well as "the underlying conduct here"--particularly the fact
that Donath, like May, had destroyed his victims' property--
distinguished Donath's criminal mischief offenses from disorderly
conduct.
Accordingly, the court found that Donath was ineligible
for safety-valve relief. The ten-year mandatory minimum made his
guidelines range 120 to 121 months' imprisonment. Had the criminal
mischief misdemeanors not been counted toward his criminal-history
points and the safety valve been applied, the bottom of Donath's
guideline sentencing range would have been considerably lower.
As it had agreed, the government recommended a sentence
reduction based on Donath's acceptance of responsibility. The
government also cited Donath's extensive cooperation with
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authorities as a basis for downward departure, see U.S.S.G.
§ 5K1.1, for a total recommended reduction of 24 months. The court
accepted the government's recommendation but granted a larger, 30-
month departure from Donath's minimum guidelines sentence and
sentenced him to concurrent 90-month sentences on each of the three
counts of conviction. At no time did Donath seek to withdraw his
plea in the district court.
II.
Donath makes two related arguments on appeal: that his
appeals waiver should not be enforced and that, reaching the
underlying issue if his waiver is set aside, the district court
erred by assigning him criminal-history points for his criminal
mischief convictions. We find Donath's waiver enforceable and do
not reach the merits of his second claim.
Our assessment of enforceability of a waiver of criminal
appeal generally involves "a step-by-step determination of the
nature and circumstances of the waiver" to ensure "that the
defendant's entry into the waiver was knowing and voluntary; that
the sentencing court adequately explained its import; that the
putative appeal came within the scope of the waiver; and that
enforcement of the waiver . . . would not work a miscarriage of
justice." United States v. Calderón-Pacheco, 564 F.3d 55, 58 (1st
Cir. 2009) (citing United States v. Teeter,
257 F.3d 14, 23-24 (1st
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Cir. 2001)); see also United States v. Cardona-Díaz, 524 F.3d 20,
22 (1st Cir. 2008).
Donath does not take issue with the first three factors.
Donath knowingly and voluntarily waived his right to this appeal,
the district court adequately explained the consequences of his
waiver, and this putative appeal falls within the scope of the
waiver. His claim instead turns on his argument that the
sentencing court "felt unnecessarily bound" by May and that, under
these circumstances, enforcing the plea agreement would constitute
a miscarriage of justice. This argument is meritless.
The miscarriage-of-justice exception is "applied
sparingly and without undue generosity" and is reserved for
"egregious cases." Teeter, 257 F.3d at 25-26; see also United
States v. Pratt,
533 F.3d 34, 37 (1st Cir. 2008);
Cardona-Díaz, 524
F.3d at 22. That Donath may have a different reading of the May
decision than the district court's straightforward analysis of the
case and its bearing on Donath's past offenses is not even arguably
within the category of miscarriage-of-justice claims. We
discourage such attempts to turn garden-variety disputes into
miscarriage-of-justice claims. That ends the matter; however, we
make an additional point that appeals such as this should not be
brought.
When enforcing the appellate waiver, we stress that both
sides are obligated to live by the bargain they made. Donath
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entered his plea and waived his right to appeal knowing that his
eligibility for safety-valve relief remained uncertain. His plea
agreement did not reserve the ability to appeal the issue of his
eligibility for the safety-valve determination. Had Donath wanted
to condition his plea on safety-valve eligibility, he could have
bargained for that right. Cf. United States v. Santiago, 229 F.3d
313, 315 (1st Cir. 2000). If he wanted to first know how his PSR
would treat his past convictions, he could have requested that the
PSR be prepared before he signed the plea agreement. Cf. United
States v. Maldonado, No. 09-1626,
2010 WL 2898250, at *1 (1st Cir.
July 26, 2010). Donath chose to do neither.
Here, the government more than satisfied its end of the
agreement. As pledged, the government both recommended a
substantial reduction in Donath's sentence for his acceptance of
responsibility and notified the court that Donath had cooperated
with authorities. Moreover, although it had not agreed to do so,
the government urged the court to reduce Donath's sentence for his
cooperation. The district court accepted the government's
recommendation and granted a yet-larger sentencing departure.
Donath has received the benefit of his bargain.
III.
For these reasons, defendant's appeal is dismissed.
So ordered.
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