US v. Elliott, T-R

Citation264 F.3d 1171
Decision Date30 August 2001
Docket NumberT-R,No. 00-5010,00-5010
Parties(10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAVIS ELLIOTT, a/k/aock, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Appeal from the United States District Court for the Northern District of Oklahoma

(D.C. No. 99-CR-20-K)

Gloyd L. McCoy of Coyle, McCoy & Burton, Oklahoma City, Oklahoma, for Defendant-Appellant.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before EBEL, ANDERSON and BALDOCK, Circuit Judges.

EBEL, Circuit Judge.

Travis Elliott pled guilty to participating in a drug conspiracy. In his plea agreement, Elliott waived the right to appeal his conviction and sentence. After the co-defendant was acquitted of the conspiracy charge to which Elliott had pled guilty, Elliott moved to withdraw his guilty plea. The district court denied the motion. Elliott appeals, notwithstanding the appeal waiver. We exercise jurisdiction under 28 U.S.C. 1291 and DISMISS on the ground that Elliott validly waived his right to contest his conviction on appeal.

BACKGROUND

Travis Elliott, a.k.a. "T-Rock," pled guilty to one count of conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. 846. Pursuant to his plea agreement, filed with the district court August 27, 1999, Elliott "knowingly and expressly waive[d] the right to contest his conviction and sentence for [this charge] in any direct or collateral appeal or other post-conviction action, including any proceeding under 28 U.S.C. 2255." In return, the Government agreed not to charge Elliott with other crimes related to the larger drug conspiracy, and it also agreed to recommend certain sentence reductions under the Sentencing Guidelines. At the time the court accepted Elliott's plea, the magistrate probed Elliott's waiver of appellate rights and obtained several statements from Elliott that the waiver was knowingly and voluntarily given.

Sidney Iiland, Elliott's alleged co-conspirator, proceeded to trial on numerous charges, including conspiring with Elliott to distribute drugs. Before the case was submitted to the jury, the trial court granted Iiland's motion for acquittal on the charge that he conspired with Elliott. See Fed. R. Crim. P. 29(a) (motion for acquittal). The jury subsequently found Iiland guilty of other federal drug trafficking crimes.

On October 26, 1999, Elliott moved to withdraw his guilty plea on the ground that it lacked a factual basis. See Fed. R. Crim. P. 32(e) ("[T]he court may permit the plea to be withdrawn if the defendant shows any fair and just reason."). Relying on the seven factors articulated in United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993), the district court denied Elliott's motion. The court sentenced Elliott to sixty months imprisonment, the statutory minimum.

DISCUSSION

Elliott appeals the court's denial of his motion to withdraw his guilty plea. The Government responds that Elliott waived his right to appeal. We agree.

"A defendant's knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable." United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998). "Nevertheless, a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court." United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000) (citation omitted). Appellate waivers are subject to certain exceptions, including where the district court relied on an impermissible factor such as race, where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, where the sentence exceeds the statutory maximum, or where the waiver is otherwise unlawful. See United States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001). We have enforced waivers of the right to appeal the imposition of a sentence, see Hernandez, 134 F.3d at 1437-38, and waivers of the right collaterally to attack under 28 U.S.C. 2255 a defendant's conviction or sentence, see Cockerham, 237 F.3d at 1183. This case asks us to consider whether a defendant may waive his right to direct appeal of a conviction. We see no material difference between waiving this right and waiving other rights to appeal, so we conclude we must enforce the waiver and dismiss this appeal.

This conclusion is supported by other circuits and sound public policy. See United States v. Michelsen, 141 F.3d 867, 869-73 (8th Cir. 1998) (upholding a district court's dismissal of a defendant's appeal from a magistrate judge's ruling on the ground that the defendant had executed a valid waiver of his right to appeal his conviction and sentence); United States v. Michlin, 34 F.3d 896, 901 (9th Cir. 1994) (dismissing appeal of the district court's denial of defendants' motion to withdraw their guilty pleas because defendants had waived the right to appeal their convictions); United States v. Davis, 954 F.2d 182, 185-86 (4th Cir. 1992) (enforcing defendant's waiver of his right to appeal prior convictions).

"[P]ublic policy strongly supports plea agreements that include an appeal waiver." United States v. Littlefield, 105 F.3d 527, 530 (9th Cir. 1997) (Hall, J., concurring). "A waiver of appellate rights can be of great value to an accused as a means of gaining concessions from the government . . . ." Michelsen, 141 F.3d at 873. Appeal waivers also benefit the government by saving them the time and money involved in arguing appeals. Cf. Littlefield, 105 F.3d at 530 (Hall, J., concurring) ("Only through the dismissal of this appeal will the government receive the benefit of its bargain."). Society benefits from the finality that waivers bring. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) ("Th[e] proper enforcement of appeal waivers serves an important function in the judicial administrative process by preserving the finality of judgments and sentences imposed pursuant to valid plea agreements.") (alterations omitted). "In order to preserve their value [to defendants, to the government, and to society], such waivers must be accorded their proper effect." Michelsen, 141 F.3d at 873.

Applying this understanding to this case, we note at the outset that Elliott does not allege that he did not knowingly and voluntarily accept the appellate waiver,1 that counsel was ineffective in connection with the negotiation of the waiver, that the waiver is otherwise unlawful, or that any other recognized exception to enforcing waivers exists. Rather, Elliott argues that the waiver does not bar him from challenging the factual basis for and, thus, the validity of the guilty plea. We agree he can contest his conviction by challenging the guilty plea, but only at the district court level. What his waiver forecloses is appealing the district court's decisions regarding his conviction and sentence, including its denial of Elliott's motion to withdraw his plea.

Case law makes clear that an appeal of a denial of a motion to withdraw a guilty plea is an attempt to "contest a conviction on appeal," and thus falls within the plain language of the waiver provision. See Michlin, 34 F.3d at 897-98, 901 (waiver of right to appeal conviction also precludes appeal of denial of motion to withdraw guilty plea); United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (concluding that the defendant's appeal of the denial of the motion to withdraw his guilty plea was "an issue related to the merits of the underlying conviction," and suggesting, in dicta, that had the waiver agreement included a waiver of the right to appeal the conviction, it would have precluded appeal of a denial of the motion to withdraw the guilty plea); United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999) (forbidding appeal from district court's denial of leave to withdraw plea on the ground that the defendant had waived the right to appeal). To allow Elliott to...

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