Filed: Oct. 31, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2502 _ UNITED STATES OF AMERICA v. DEMARIO ANTUAN WHITE, Appellant _ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-09-cr-00262-002) District Judge: Honorable A. Richard Caputo _ Submitted Under Third Circuit L.A.R. 34.1(a) June 21, 2019 _ Before: AMBRO, RESTREPO, and FISHER, Circuit Judges. (Filed: October 31, 2019) _ OPINION * _ * This disposition is not an opinion o
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2502 _ UNITED STATES OF AMERICA v. DEMARIO ANTUAN WHITE, Appellant _ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-09-cr-00262-002) District Judge: Honorable A. Richard Caputo _ Submitted Under Third Circuit L.A.R. 34.1(a) June 21, 2019 _ Before: AMBRO, RESTREPO, and FISHER, Circuit Judges. (Filed: October 31, 2019) _ OPINION * _ * This disposition is not an opinion of..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2502
_____________
UNITED STATES OF AMERICA
v.
DEMARIO ANTUAN WHITE,
Appellant
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-09-cr-00262-002)
District Judge: Honorable A. Richard Caputo
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 21, 2019
______________
Before: AMBRO, RESTREPO, and FISHER, Circuit Judges.
(Filed: October 31, 2019)
______________
OPINION *
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.
Appellant Demario Antuan White challenges the validity of the collateral
challenge waiver in his guilty plea agreement. He argues that he did not “knowingly”
agree to this waiver provision and that it “works a miscarriage of justice” against him.
We will affirm the District Court’s decision to uphold the collateral challenge waiver and
deny White’s motion for post-conviction relief.
I
A
A grand jury charged White on August 25, 2009 with use of a firearm during a
crime of violence (Count III) and four other counts. On January 6, 2011, White pleaded
guilty to Count III, using a firearm during a crime of violence, in violation of 18 U.S.C. §
924(c), with attempted kidnapping as the predicate crime of violence. The government
agreed to a ten-year statutory minimum sentence and to dismiss all remaining counts.
Under the heading, “Appeal Waiver,” the written plea agreement contained a
waiver of White’s rights to both directly appeal and collaterally challenge his conviction.
App. 33. The collateral challenge waiver, the provision relevant to this appeal, states:
The defendant also waives the defendant’s right to challenge any conviction
or sentence . . . or the manner in which the sentence was determined in any
collateral proceeding, including but not limited to a motion brought under
Title 28, United States Code, Section 2255.
App. 33 (emphasis added).
At White’s plea hearing, as the government outlined the key terms of the
agreement at the Court’s request, the government noted that the agreement contained an
2
“appeal waiver” in which the “defendant gives up his right to appeal his sentence and a
right to at any later time challenge the sentence.” App. 39 (emphasis added). The Court,
referring to White’s “right to appeal,” asked him: “And part of the reason I presume
you’re giving that up is because you reached this arrangement or understanding with the
government to have a term of ten years?” App. 39. White replied: “Yes, sir.” App. 39.
The Court confirmed that White and his counsel were content with the bargain he
received in exchange for the waiver—and only then did the Court conclude that it was
“satisfied that the appeal waiver is both knowing and voluntary.” App. 39.
B
Notwithstanding his collateral challenge waiver, on May 18, 2016, White filed a
motion to correct his sentence under 28 U.S.C. § 2255, urging the District Court to vacate
his judgment and sentence because attempted kidnapping no longer qualified as a
predicate crime of violence under § 924(c), in light of the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). The District Court found White’s
collateral challenge waiver enforceable. United States v. White, No. 3:09-CR-262-2,
2018 WL 2734857 (M.D. Pa. June 7, 2018). White timely appeals that decision. 1
1
White’s codefendant, Ernest Parker, has filed an almost-identical challenge in
United States v. Parker, No. 18-2254, which we will address separately.
3
II 2
Appellate and collateral challenge waivers are valid as long as they are knowing,
voluntary, and do not work a miscarriage of justice. United States v. Mabry, 536 F.3d
231, 237 (3d Cir. 2008), abrogated on other grounds by Garza v. Idaho,
139 S. Ct. 738
(2019);
Khattak, 273 F.3d at 563. “Waivers of the legal consequences of unknown future
events are commonplace”—and in fact they “assist defendants in making favorable plea
bargains.”
Khattak, 273 F.3d at 561–62; see also
id. at 561 (“As the Supreme Court has
stated, ‘A criminal defendant may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution.’” (quoting United States v.
Mezzanatto,
513 U.S. 196, 201 (1995)). Courts should therefore “strictly construe[]”
such waivers.
Id. at 562. White argues that his waiver was not knowing and that it works
a miscarriage of justice.
A
White argues that he did not knowingly agree to the collateral challenge waiver
because (1) the District Court failed to specifically inform him of the waiver and confirm
his understanding of it, 3 (2) the written plea agreement “includes legal terminology and
2
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231
and § 2255(a). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and
§ 2255(d). We review the District Court’s decision to enforce a waiver of the right to
collaterally challenge a judgment and sentence de novo. See United States v. Khattak,
273 F.3d 557, 560 (3d Cir. 2001). We do not address the merits of White’s appeal.
3
White raises this argument under Federal Rule of Criminal Procedure 11.
Because White did not raise this Rule 11 objection before the District Court, he “has the
burden to satisfy the plain-error rule” as to this particular argument. United States v.
Corso, 549 F.3d 921, 928 (3d Cir. 2008) (internal quotations omitted). Under this
4
citations that would be unintelligible to a layperson,” and (3) White could not have
anticipated subsequent changes in the law. Appellant’s Br. 6–7.
The government asserts that White waived his argument that he did not
“knowingly” enter into the collateral challenge waiver because he did not raise this issue
before the District Court. We disagree. The District Court “has an affirmative duty both
to examine the knowing and voluntary nature of the waiver and to assure itself that its
enforcement works no miscarriage of justice, based on the record evidence before it.”
Mabry, 536 F.3d at 237–38 (“Compliance with this obligation aids our review and
ensures that the defendant’s rights are carefully considered.”). “At minimum, [the
District Court] should have reviewed the terms of the plea agreement and change-of-plea
colloquy and addressed their sufficiency.”
Id. at 238. As was the case in Mabry, White
does not argue that he was “actually misled” but facially challenges the terms of the
agreement and substance of the plea hearing colloquy. See
id. Again similar to Mabry,
the District Court’s opinion did not analyze whether White knowingly and voluntarily
entered into the waiver. Thus we will. See
id. (“Because the District Court did not do so,
standard, he must show “(1) that there was an error, i.e., a deviation from a legal rule, (2)
that the error was ‘plain,’ i.e., clear or obvious, and (3) that the error affected his
substantial rights.”
Id. at 928. As this Court stated in Corso, relief on plain-error review
is discretionary, “and even if all three conditions are met we will exercise our discretion
to correct the unpreserved error only if” we are persuaded that a miscarriage of justice
would otherwise result.
Id. at 929. Thus we incorporate our “miscarriage of justice”
analysis below, see Section II.B, and find that White’s Rule 11 argument does not
warrant relief under the plain error standard. Section II.B demonstrates that the Rule 11
error alleged by White does not “seriously affect[] the fairness, integrity or public
reputation of judicial proceedings,” as required to demonstrate a “miscarriage of justice”
on plain error review. United States v. Goodson,
544 F.3d 529, 541 n.11 (3d Cir. 2008)
(quoting United States v. Olano,
507 U.S. 725, 736 (1993)) (internal quotations omitted).
5
we will engage in an independent review of the record of proceedings to determine
whether the waiver of habeas was knowing and voluntary.”).
It is undisputed that White’s counsel explained the “Appellate Waiver” provision
to him and that White acknowledged as much when he signed the agreement. App. 36
(The agreement states: “I have read this agreement and carefully reviewed every part of it
with my attorney. I fully understand it and I voluntarily agree to it.”). This
acknowledgement counteracts White’s unsubstantiated argument that the terms of the
agreement would have been “unintelligible” to him. See Appellant’s Br. 7.
The District Court’s plea colloquy, described above, though not a model of
technical perfection, addressed the “appeal waiver” and called upon the government to
review key terms, including White’s relinquishment of his “right to at any later time
challenge the sentence.” App. 39. The colloquy sufficiently counteracts White’s claim
that the collateral challenge waiver was not knowing and voluntary. 4
Additionally, we agree with the District Court’s finding that subsequent changes in
the law do not make a plea agreement “involuntary or unknowing.” App. 5–6 (internal
quotations omitted); see also United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005)
(“The waiver of an appeal will not be invalidated merely because unanticipated events
4
We will note nevertheless that the District Court should not have delegated its
duties to the government to “address the defendant personally” and “determine that the
defendant understands” his appeal and collateral challenge waivers, Fed. R. Crim. P.
11(b)(1)(N), and the District Court should have more clearly addressed the collateral
challenge waiver as distinct from the appeal waiver. (In a perfect world, these waivers
would have been listed separately in the written agreement as well.) Though there were
plausible Rule 11 issues stemming from the plea colloquy, we are satisfied that White
entered into the waiver knowingly and voluntarily.
6
occur in the future. The prospective nature of waivers has ‘never been thought to place
[waivers] off limits or to render a defendant’s act “unknowing.”’” (quoting Khattak, 273
F.3d at 561) (alteration in original)). Thus, we find the “knowing and voluntary”
requirement for a valid waiver satisfied.
B
White next argues that enforcement of the waiver would constitute a “miscarriage
of justice.” Appellant’s Br. 8–9. He claims that, pursuant to the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015), attempted kidnapping no
longer constitutes a predicate “violent felony” to support his conviction under § 924(c).
Appellant’s Br. 8.
Khattak set forth the following factors to consider in determining whether
enforcing a waiver results in a “miscarriage of justice”:
[T]he clarity of the error, its gravity, its character (e.g., whether it concerns
a fact issue, a sentencing guideline, or a statutory maximum), the impact of
the error on the defendant, the impact of correcting the error on the
government, and the extent to which the defendant acquiesced in the result.
273 F.3d at 563 (quoting United States v. Teeter,
257 F.3d 14, 26 (1st Cir. 2001))
(alteration in original); see also
Mabry, 536 F.3d at 243 (noting this analysis requires
courts to “look to the underlying facts to determine whether a miscarriage of justice
would be worked by enforcing the waiver”).
The “clarity” and “gravity” of the alleged error and its effect on the defendant are
not ascertainable because White entered into a plea agreement. Under the terms of the
agreement, the government dismissed the remaining four counts against him in addition
7
to other concessions. Given the benefits White received, it is difficult to imagine what
punishment he would have faced absent the agreement.
The character of the error is that the predicate “violent felony” to White’s § 924(c)
conviction, the only count to which he pleaded guilty, is allegedly no longer a viable
predicate offense. While Johnson raises serious concerns and has upended sentences in
many other cases, so many other variables were at play in the formation of the plea
agreement here, and White undoubtedly garnered a benefit from his bargain. Plea
agreements, by their nature
always entail risks for the parties—risks relating to what evidence would or
would not have been admitted at trial, risks relating to how the jury would
have assessed the evidence and risks relating to future developments in the
law. The salient point is that a plea agreement allocates risk between the
two parties as they see fit.
Lockett, 406 F.3d at 213 (emphasis added) (quoting United States v. Bradley,
400 F.3d
459, 464 (6th Cir. 2005)).
In other words, a valid plea agreement “‘requires knowledge of existing rights, not
clairvoyance.’”
Id. (quoting Bradley, 400 F.3d at 463).
We agree with the District Court that the effect on the government of correcting
the alleged error “would be great.” App. 6. “Not only would the government have to re-
litigate a nearly ten-year old crime, but the government would also find itself litigating
more of these actions as prisoners learn of yet another avenue to challenge the propriety
of their sentences.” App. 6–7. Lastly, we believe that White acquiesced fully and
completely in the result, as he entered into a plea agreement by which he and the
government both acquired risks and benefits that they presumably deemed worthwhile.
8
See Khattak, 273 F.3d at 561 (“Allowing defendants to retract waivers would prolong
litigation, affording defendants the benefits of their agreements while shielding them
from their self-imposed burdens.”). Thus, we will enforce White’s collateral challenge
waiver, and we do not reach the merits of this appeal.
III
For the foregoing reasons, we will affirm the judgment of the District Court.
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