Filed: Apr. 04, 2007
Latest Update: Mar. 02, 2020
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0248n.06 Filed: April 4,2007 No. 04-4325 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT United States of America, Plaintiff-Appellee, v. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE Gary Sean Hensel, NORTHERN DISTRICT OF OHIO Defendant-Appellant. / BEFORE: COLE, CLAY, and GILMAN, Circuit Judges. CLAY, Circuit Judge. Defendant Gary Sean Hensel pled guilty on July 21, 2004, to being a felon in possession of a firearm in viola
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0248n.06 Filed: April 4,2007 No. 04-4325 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT United States of America, Plaintiff-Appellee, v. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE Gary Sean Hensel, NORTHERN DISTRICT OF OHIO Defendant-Appellant. / BEFORE: COLE, CLAY, and GILMAN, Circuit Judges. CLAY, Circuit Judge. Defendant Gary Sean Hensel pled guilty on July 21, 2004, to being a felon in possession of a firearm in violat..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0248n.06
Filed: April 4,2007
No. 04-4325
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
Gary Sean Hensel, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: COLE, CLAY, and GILMAN, Circuit Judges.
CLAY, Circuit Judge. Defendant Gary Sean Hensel pled guilty on July 21, 2004, to being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On October 21, 2004, the
district court imposed the minimum sentence under the applicable sentencing guidelines and
sentenced Defendant to an imprisonment term of seventy months and to three years of supervised
release. Defendant appeals his sentence in light of United States v. Booker, 543 U.S. 220 (2005),
arguing that there is a strong inference that the district court may have imposed a lower sentence
under a non-mandatory sentencing guidelines scheme. For the reasons which follow, because of the
appeal waiver provision in Defendant’s plea agreement, we DISMISS this appeal for lack of
jurisdiction.
No. 04-4325
BACKGROUND
On July 21, 2004, Defendant entered into a plea agreement with the government.
Defendant’s plea agreement sets forth “statutory penalties, an appellate waiver, the base offense level
calculations, a factual agreement, the [ ] constitutional rights [Defendant] would be waiving, and his
acknowledgment of a voluntary, knowing plea of guilty.” (Gov’t Br. at 4) In pertinent part, the plea
agreement provides:
WAIVER OF APPEAL, DEFENSES, AND COLLATERAL
ATTACK RIGHT
Defendant acknowledges having been advised by counsel of
Defendant’s rights, in limited circumstances, to appeal the conviction
or sentence in this case, including the appeal right conferred by 18
U.S.C. § 3742, and to challenge the conviction or sentence
collaterally through a post-conviction proceeding, including a
proceeding under 28 U.S.C. § 2255. Defendant expressly waives
those rights except as reserved below.
Defendant reserves the right to appeal: (a) any punishment in excess
of the statutory maximum; (b) any punishment to the extent it
constitutes an upward departure from the Sentencing Guideline range
deemed most applicable by the Court; (c) any punishment to the
extent it exceeds the guideline calculation contained in this
agreement; and (d) any criminal history determination to which the
defendant objected at sentencing. Nothing in this paragraph shall act
as a bar to the defendant perfecting any legal remedies he may
otherwise have on appeal or collateral attack respecting claims of
ineffective assistance of counsel or prosecutorial misconduct.
(J.A. 21) (formatting added). In the plea agreement, Defendant “acknowledge[d] that his offer to
plead guilty is freely and voluntarily made.” (J.A. 23) Defendant also “declare[d] that he is fully
satisfied with the legal counsel and assistance provided by his attorney.” (J.A. 24) Under the terms
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No. 04-4325
of the agreement, the “plea agreement sets forth the full and complete terms and conditions of the
agreement between the defendant and the government.” Id.
At the plea hearing, the district court asked the government to “summarize the promises that
have been made by the United States to [Defendant]” in the plea agreement. (J.A. 34) The
government discussed the provisions in the agreement, including the appellate waiver clause. In
pertinent part, the government stated:
the other things contained are waiver of appeal that apply to the
conviction itself. He may appeal any sentence given by the Court that
constitutes an upward departure or anything based on ineffective
assistance of counsel.
(J.A. 34-35)
The district court reviewed the terms of the plea agreement with Defendant and stated that
Defendant’s “sentence will [ ] be consistent with the plea agreement which [Defendant] signed and
the Court has approved and signed as well.” (J.A. 36) The district court inquired whether Defendant
was “certain that [he] want[ed] to plead guilty,” and Defendant indicated his interest in pleading
guilty. Id. The district court accepted Defendant’s guilty plea finding that Defendant “understands
the nature of the charge against him; that his plea is voluntary and intelligently made; and that there
is a substantial factual basis for the plea.” (J.A. 35)
On October 22, 2004, the district court held a sentencing hearing. At the hearing,
Defendant’s counsel indicated that “[w]e have no dispute with what the presentence report stated
other than to say the criminal history kind of over-represented it.” (J.A. 41) Relying on the
presentence report, the district court calculated a “net offense level of 21 points and a criminal
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No. 04-4325
history category roman numeral V. The guideline range is 70 to 87 months.” (J.A. 44) Defendant’s
counsel objected again:
Your Honor, we would just again reiterate our request for the Court
to find him in a criminal history category 3 or 4, and if the Court does
not do that, for the Court to sentence him to the minimum.
(J.A. 44) The district court stated:
I think that the criminal history points are accurate. I do think that
this is a pretty long period of time here. So although I am not going
to rule that the criminal history overstates your responsibility because
you’re responsible and know you are, I am however going to sentence
you at the low end of the guidelines because I think 70 months, you
should be able to pick it up and turn it around.
(J.A. 44) The court sentenced Defendant to an imprisonment term of seventy months, the minimum
term under the sentencing guideline range, and to three years of supervised release.
On appeal, Defendant’s cursory brief fails to meaningfully develop the legal arguments.
Defendant contends that he was “sentenced to minimum term under the Federal Sentencing
guidelines for his offense, and where that occurs . . . there is a strong inference that the Court might
have imposed a lesser sentence without the Guidelines.” (Def. Br. at 5) Liberally construing
Defendant’s brief, Defendant appears to argue that in light of Booker, he “should be re-sentenced
to less than the Guideline minimum.” Id.
For its part, the government argues that Defendant “waived his rights to this appeal in a
binding plea agreement.” (Gov’t Br. at 8). The government does not meaningfully respond to
Defendant’s arguments concerning the possible imposition of a lower sentence. Instead, the
government argues that Defendant simply cannot bring this appeal because “his sentence did not
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No. 04-4325
violate any of the provisions of the plea agreement which constitute[ ] grounds for appeal,” and asks
the Court to dismiss this appeal. Id.
DISCUSSION
I. WHETHER DEFENDANT WAIVED THE RIGHT TO APPEAL HIS SENTENCE IN
THE PLEA AGREEMENT
Standard of Review
“This Court reviews the question of whether a defendant waived his right to appeal his
sentence in a valid plea agreement de novo.” United States v. Smith, 344 F.3d 479, 483 (6th Cir.
2003) (citing United States v. Stubbs,
279 F.3d 402, 411 (6th Cir.2002)); see also United States v.
Swanberg,
370 F.3d 622, 626 (6th Cir. 2004).
Analysis
“It is well settled that a defendant in a criminal case may waive ‘any right, even a
constitutional right,’ by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-64
(6th Cir. 2001) (quoting United States v. Ashe,
47 F.3d 770, 775-76 (6th Cir.1995)). “[A] defendant
in a criminal case may waive his right to appeal his sentence in a valid plea agreement.”
Smith, 344
F.3d at 483. “[W]aiver of appeal provisions in a plea agreement [may] effectively waive appeal of
Booker-type violations.” United States v. Luebbert,
411 F.3d 602, 603 (6th Cir. 2005).
“When a [d]efendant waives his right to appeal his sentence in a valid plea agreement, this
Court is bound by that agreement and will not review the sentence except in limited circumstances.”
Smith, 344 F.3d at 483 (quoting United States v. Stubbs,
279 F.3d 402, 410 (6th Cir. 2002)). “For
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No. 04-4325
a plea agreement to be constitutionally valid, a defendant must have entered into the agreement
knowingly and voluntarily.” Smith, 344 F.3d at 483; see also
Swanberg, 370 F.3d at 625-26.
This Court has “strongly encourage[d] the government to promptly file a motion to dismiss
the defendant’s appeal where the defendant waived his appellate rights as part of a plea agreement,
and to attach a copy of the appellate-waiver provision and the transcript of the plea colloquy showing
the district court’s compliance with Rule 11(b)(1)(N).” United States v. McGilvery, 403 F.3d 361,
363 (6th Cir. 2005); but see United States v. Caruthers,
458 F.3d 459, 472 n.6 (6th Cir. 2006)
(noting that an appeal waiver may not deprive the Court of jurisdiction to hear a sentencing appeal).
In this case, provisions in Defendant’s plea agreement determine Defendant’s ability to
pursue this appeal. More specifically, Defendant waived his appeal rights in the plea agreement.
Defendant argues that the district court led him to believe that the sentence could be appealed.
Defendant fails to meaningfully develop this argument and does not substantiate this claim by
pointing to specific parts of the record or plea colloquy. Defendant has made no effort to address
the impact of the plea agreement and appeal waiver on the claims raised in this appeal, and has failed
to meaningfully respond to the government’s arguments. Defendant simply does not allege that the
plea agreement is invalid or that his plea was not knowing or voluntary. Since Defendant has failed
to meaningfully address this issue, Defendant has waived the issue of whether the plea agreement
bars this appeal. See, e.g., United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (“[I]t is a
settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.”).
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No. 04-4325
Even if the Court were to find that Defendant had properly addressed the issues raised in the
government’s motion to dismiss, the written plea agreement and the district court’s plea colloquy
support a finding that Defendant waived his appeal rights knowingly and voluntarily.
At the plea hearing, the district court explained, and the Defendant indicated he understood,
the nature of the charges and penalties associated with a conviction:
The Court: And what I’ve read you is the maximum
scenario that you face; do you understand
that?
The Defendant: Yes, Your Honor.
(J.A. 31) The court informed Defendant of the rights he would be waiving by pleading guilty,
including the
right to trial by jury, where you have the right to counsel at every
stage of the proceedings . . . the right to testify on your own behalf;
and the right not to testify if you choose not to; the right to compel
witnesses to appear on your behalf; and the right to be presumed
innocent until the government can prove otherwise beyond a
reasonable doubt[.]
(J.A. 31) The court specifically inquired whether Defendant understood that “by pleading guilty [he]
[was] giving up [the] right to appeal [his] conviction,” (J.A. 31), and explained that “[t]here may be
some things about the sentence that could be appealed, but you don’t have the right to appeal the
actual conviction.” (J.A. 31-32) Defendant clearly indicated that he understood the waiver of his
right to appeal. Contrary to Defendant’s averments, the district court’s statements and questions
were not ambiguous and did not invalidate the waiver of appeal contained in the plea agreement.
The district court properly inquired into the voluntariness of Defendant’s guilty plea:
The Court: Mr. Hensel, think very carefully now. You’ve
heard the promises that the government made
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No. 04-4325
to you in this plea agreement. Have there
been any other promises made to you by
anyone . . . to encourage you to plead guilty
here?
The Defendant: No, Your Honor.
The Court: Has anyone made any threats to encourage
you to plead guilty?
The Defendant: No, ma’am.
(J.A. 35) Defendant’s responses during the plea colloquy confirm general statements contained in
the plea agreement where Defendant “acknowledge[d] that his offer to plead guilty is freely and
voluntarily made,” (J.A. 23), and “declare[d] that he is fully satisfied with the legal counsel and
assistance provided by his attorney.” (J.A. 24) Defendant has simply failed to produce any evidence
that would suggest that his plea was not knowing and voluntary. The Court cannot infer a violation
of Defendant’s rights from the plea colloquy in the record.
Defendant’s plea agreement states:
WAIVER OF APPEAL, DEFENSES, AND COLLATERAL
ATTACK RIGHT
Defendant acknowledges having been advised by counsel of
Defendant’s rights, in limited circumstances, to appeal the conviction
or sentence in this case, including the appeal right conferred by 18
U.S.C. § 3742, and to challenge the conviction or sentence
collaterally through a post-conviction proceeding, including a
proceeding under 28 U.S.C. § 2255. Defendant expressly waives
those rights except as reserved below.
Defendant reserves the right to appeal: (a) any punishment in excess
of the statutory maximum; (b) any punishment to the extent it
constitutes an upward departure from the Sentencing Guideline range
deemed most applicable by the Court; (c) any punishment to the
extent it exceeds the guideline calculation contained in this
agreement; and (d) any criminal history determination to which the
defendant objected at sentencing. Nothing in this paragraph shall act
as a bar to the defendant perfecting any legal remedies he may
otherwise have on appeal or collateral attack respecting claims of
ineffective assistance of counsel or prosecutorial misconduct.
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No. 04-4325
(J.A. 21) (formatting added). As illustrated above, Defendant’s plea agreement contained an express
waiver of the right to appeal. This Court has dismissed Sixth Amendment challenges to pre-Booker
sentences based on this type of written appeal waiver. For example, in Luebbert, where the appeal
waiver was similar to the waiver in this case, the Court found that the appeal waiver foreclosed the
appeal. Luebbert, 411 F.3d at 603. Like the plea agreement in the instant case, the plea agreement
in that case provided that the
defendant additionally waives the right to appeal his sentence on any
ground . . . other than any sentence imposed in excess of the statutory
maximum, and any punishment to the extent it constitutes an upward
departure from the guideline range deemed most applicable by the
sentencing court.
Luebbert, 411 F.3d at 603. This language, which is similar to the language in Defendant’s plea
agreement, foreclosed an appeal in Luebbert. Post-Booker, this Court has held that “where
developments in the law later expand a right that a defendant has waived in a plea agreement, the
change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its
binding nature.” United States v. Bradley,
400 F.3d 459, 463 (6th Cir.2005); see also United States
v. Yoon,
398 F.3d 802, 808 (6th Cir. 2005). In light of this precedent, the plea agreement forecloses
this appeal.
CONCLUSION
For the foregoing reasons, because of the appeal waiver provision in Defendant’s plea
agreement, we DISMISS Defendant’s appeal for lack of jurisdiction.
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