USA v. Brown, 99-4599

• Decision Date: 26 September 2000
• Docket Number: No. 99-4599,99-4599
• Citation: 232 F.3d 399
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIE EDWARD BROWN, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 399

232 F.3d 399 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIE EDWARD BROWN, Defendant-Appellant.

No. 99-4599.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: September 26, 2000.

Decided: November 16, 2000.

Appeal from the United States District Court for the District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge. (CR-98-174) COUNSEL ARGUED: Christopher Ford Cowan, COWAN, NORTH & LAFRATTA, L.L.P., Richmond, Virginia, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINSON, Chief Judge, and MOTZ and KING, Circuit Judges.

Dismissed by published opinion. Judge Motz wrote the opinion, in which Chief Judge Wilkinson and Judge King joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Willie Edward Brown seeks to appeal the sentence imposed upon him pursuant to his guilty plea. Specifically, Brown seeks to challenge the district court's enhancement of his sentence based on his status as a career offender. The government has moved to dismiss on the ground that Brown waived his right to appeal his sentence in his plea agreement. In the alternative, the government argues that Brown was properly sentenced as a career offender. Because we conclude that Brown has waived his right to appeal, we dismiss the appeal.

I.

After Brown stabbed a man at the Fort Bragg Military Reservation with a Samurai-style sword, he pled guilty to a single count of assault with a dangerous weapon with intent to do bodily harm, in violation of 18 U.S.C. § 113(a)(3) (Supp. IV 1998). Brown and the government memorialized their plea agreement in a four-page document. Paragraph 2b of that agreement, which appears on the first page, contains a provision stating that Brown agrees:

To waive knowingly and expressly the right to appeal what ever sentence is imposed on any ground, including any appeal pursuant to 18 U.S.C. § 3742, and further to waive any right to contest the conviction or the sentence in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.

Paragraph 3b of the agreement, which appears on page three, provides in pertinent part that the "Defendant [Brown] understands . . . [t]hat sentencing will be in accordance with the United States Sentencing Guidelines, that any sentence imposed will be without parole, and that the Court may depart from those guidelines under some circumstances."

During the plea colloquy, the district court advised Brown of the consequences of pleading guilty and questioned Brown to ensure that the plea was both knowing and voluntary. Before accepting Brown's plea, the court also reviewed the contents of the plea agreement with him. As part of this process, the court advised Brown that he was waiving the right to appeal his sentence:

The Court: Now, I have been handed a document entitled "Memoranda of Plea Agreement in your Case." It's got four pages, and it appears to have your signature and that of Mr. Parker and Mr. Bockin, the Special Assistant U. S. Attor ney. And I ask you, did you have an opportu nity to read and to discuss this plea agreement with your lawyer, Mr. Parker, before you signed it?

Defendant: Yes, sir.

The Court: And does this plea agreement represent in its entirety your agreements with the United States?

Defendant: Yes, sir.

The Court: Did you understand all the terms in this plea agreement, the language, even any legal phrases that were in here after you talked with Mr. Parker about it?

Defendant: Yes, sir.

The Court: Has anyone made any other or different prom ise to get you to plead guilty to this charge, other than what's written in this plea agree ment?

Defendant: No, sir.

The Court: Has anyone threatened you or tried to force you in any way to get you to plead guilty?

Defendant: No, sir.

The Court: Do you understand that this is a felony and you're going to lose certain valuable civil rights? You have to say "yes" or "no."

Defendant: Yes, sir.

The Court: And if I accept your plea today you cannot ever later withdraw your plea. Do you under stand that?

Defendant: Yes, sir.

The Court: Have you answered all of my questions truth fully?

Defendant: Yes, sir.

The Court: Now, I point out to you paragraph 2-C. You agree to waive your rights -correction, 2-B -waive your right to appeal whatever sen tence is imposed, reserving only the right to appeal based on prosecutorial misconduct or ineffective assistance of counsel. Do you understand that?

Defendant: Yes, sir.

The Court: In other words, you can't appeal as long as your sentence is in accordance with the law.

Defendant: Yes, sir.

The Court: All right. Do you need any more time to think about your plea or to talk with your lawyer, Mr. Parker, before you enter your plea?

Defendant: No, sir.

Based on this colloquy, the court determined that Brown was competent and capable of entering a voluntary plea, and that his plea of guilty, and the subsequent waiver of his right to appeal, was knowing and voluntary.

In a pre-sentence report, the probation officer designated Brown a career offender pursuant to U.S.S.G. § 4B1.1 on the basis of two prior felony convictions for crimes of violence, namely a North Carolina conviction for breaking and entering and a South Carolina conviction for assault and battery of a high and aggravated nature. Brown objected to his designation as a career offender on the ground that, under South Carolina law, assault and battery of a high and aggravated nature was neither a felony nor a violent crime. The district court rejected this argument and accepted the probation officer's designation of Brown as a career offender. Based on his career offender status, Brown's sentencing range was seventy-seven to ninety-six months. The district court imposed a sentence of ninety-six months, the maximum allowed under the Sentencing Guidelines.

Brown now appeals his designation as a career offender, and his resulting sentence, on the same ground that he raised in the district court, as well as on new ground, namely that the first predicate offense, breaking and entering, was insufficient to trigger career offender status because it was not a felony conviction and because Brown was only sixteen at the time of his conviction. The government moves to dismiss Brown's appeal, asserting that he waived his right to appeal in his plea agreement.¹

II.

The Constitution does not provide criminal defendants an appeal as a matter of right. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The United States Code, however, permits a criminal defendant to appeal a sentence imposed "as a result of an incorrect application of the Sentencing Guidelines." 18 U.S.C. § 3742(a)(2) (1994). A defendant can, of course, waive this statutory right to appeal. See United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether he has effectively done so is a matter of law that we review de novo.

We have considered the effectiveness of a plea agreement appeal waiver in two cases, United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), and United States v. Bowden, 975 F.2d 1080 (4th Cir. 1992). These cases establish that, with two exceptions, a defendant may not appeal his sentence if his plea agreement contains an express and unqualified waiver of the right to appeal, unless that waiver was unknowing or involuntary. An express knowing waiver will not bar appeal of a sentence when the sentence was (1) imposed in excess of the maximum penalty provided by law or (2) based on a constitutionally impermissible factor such as race. See Marin, 961 F.2d at 496. The sentences at issue in Marin and Bowden involved neither of these exceptions, nor are these exceptions at issue here.

In Marin, we held that because the plea agreement contained an express and unqualified waiver of the defendant's right to appeal his sentence and the record did not indicate that the waiver was anything less than knowing and voluntary, the waiver was valid. See Marin, 961 F.2d at 494-96 & n.1. Although Marin claimed that the district court misapplied the Guidelines in computing his sentence, we concluded that this type of claim was waived by the applicable provision in the plea agreement.² We reasoned:

[A] defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a consti tutionally impermissible factor such as race. However, the sentence that Marin seeks to appeal is not such a sentence. Assuming the district court committed the errors that Marin alleges, his complaints at most rest on an improper applica tion of the guidelines and a violation of a procedural rule.

Id. at 496. Thus, because we concluded that the plea agreement contained an express waiver of Marin's right to appeal, which was knowing and voluntary, it precluded an appeal based on the claim that the district court misapplied the Guidelines.

In Bowden, however, we considered a plea agreement with a differently worded appeal waiver and determined that it did not bar the defendant from challenging the district court's application of the Guidelines. See Bowden, 975 F.2d at 1081 n.1. In that case, the plea agreement stated that the defendant "waives any appeal . . . if the sentence imposed herein is within the guidelines." Id. After being sentenced, Bowden sought to appeal his designation as an armed career criminal under 18 U.S.C. § 924(e) as "not within the guidelines." Id. (internal quotations omitted). We concluded that"a fair reading" of the waiver provision in the plea agreement "preserve[d] Bowden's right to challenge the district court's application...