U.S. v. Andis

• Decision Date: 27 June 2003
• Docket Number: No. 01-1272.,01-1272.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Robert ANDIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

333 F.3d 886

UNITED STATES of America, Plaintiff-Appellee, v. John Robert ANDIS, Defendant-Appellant.

No. 01-1272.

United States Court of Appeals, Eighth Circuit.

Submitted: September 11, 2002.

Filed: June 27, 2003.

Norman S. London, argued, Federal Public Defender, St. Louis, MO (Ilene A. Goodman, on the brief), for appellant.

Donald G. Wilkerson, Assistant U.S. Attorney, argued, St. Louis, MO (Raymond W. Gruender, on the brief), for appellee.

Before HANSEN,¹ Chief Judge, BRIGHT, McMILLIAN, BOWMAN, WOLLMAN, LOKEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, and SMITH, Circuit Judges, en banc.

MELLOY, Circuit Judge.

We granted en banc review of this appeal to determine under what circumstances a defendant can effectively waive appellate rights as part of a valid plea agreement. In this case, John R. Andis entered into a plea agreement that significantly limited his appellate rights.² In spite of the waiver in his plea agreement, Mr. Andis now appeals certain conditions of his supervised release, claiming the conditions constitute an illegal sentence and therefore the waiver does not bar him from bringing this appeal.

A panel of this Court originally remanded this case to the district court³ for further consideration of the conditions of Mr. Andis's supervised release. See United States v. Andis, 277 F.3d 984 (8th Cir. 2002). We vacated the panel decision and ordered an en banc rehearing. We now hold that although a defendant generally can waive appellate rights, such a waiver is subject to certain limitations. We also hold that because Mr. Andis entered into a plea agreement that contained a valid waiver of his appellate rights and the sentence imposed was not illegal, the conditions of his supervised release may not be reviewed on appeal. As a result, his appeal is dismissed.

I. Overview

On October 16, 2000, Mr. Andis entered into a "Stipulation of Facts Relative to Sentencing," which included a plea agreement (the "Agreement"). In the Agreement, he pled guilty to one count of transporting a minor in interstate commerce for illegal sexual activity in violation of 18 U.S.C. § 2423(a). In exchange for the Government's dismissal of the remaining counts in the indictment and promise not to further prosecute him for events related to transporting a fourteen-year-old girl for the purpose of engaging in sexual conduct, Mr. Andis agreed to waive certain statutory and constitutional rights, including most of his appellate rights. The relevant portions of the Agreement provided that:

In the event the District Court accepts the plea agreement ... defendant understands that as part of this agreement, both the defendant and the Government hereby mutually agree to waive all rights to appeal whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from an upward or downward departure from the Guideline range that is established at sentencing. In this regard, the parties expressly acknowledge that no agreement has been reached as to issues pertinent to the Guidelines calculation, except as found in this section of the Stipulation. These issues are left for the District Court's determination; the District Court's decision shall not be subject to appeal. The defendant states that he is fully satisfied with the representation he has received from his counsel, that they have discussed the Government's case, possible defenses and defense witnesses, and that his counsel has completely and satisfactorily explored all areas which the defendant has requested relative to the Government's case and his defense, and in light of this, the defendant further agrees to waive all rights to contest the conviction or sentence, except for grounds of prosecutorial misconduct or ineffective assistance of counsel, in any post-conviction proceeding, including one pursuant to Title 28, U.S.C., Section 2255.

On appeal, Mr. Andis claims that despite waiving his appellate rights, he implicitly retained the right to appeal an illegal sentence. In particular, he argues that the conditions of his supervised release are illegal because they are generic conditions imposed without regard to the specific characteristics of his crime as required by 18 U.S.C. § 3583(d). The Government contends that Mr. Andis waived his right to appeal his sentence regardless of whether the conditions imposed render it illegal. Alternatively, the Government argues that if Mr. Andis retained the right to appeal an illegal sentence, then the conditions of his supervised release do not constitute such an illegal sentence.

II. Waiver of Appellate Rights in Plea Agreements

Before analyzing the specifics of Mr. Andis's appeal, we take this opportunity to review and clarify this Circuit's position on the use of appeal waivers in plea agreements.

As a general rule, a defendant is allowed to waive appellate rights. Every circuit that has considered this issue has reached the conclusion that at least some forms of appeal waivers are permissible. See generally United States v. Teeter, 257 F.3d 14, 21-27 (1st Cir.2001); United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir.2001); United States v. Khattak, 273 F.3d 557, 559-63 (3d Cir.2001); United States v. Brown, 232 F.3d 399, 402-06 (4th Cir. 2000); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992); United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir.2001); United States v. Nguyen, 235 F.3d 1179, 1182-84 (9th Cir.2000); United States v. Rubio, 231 F.3d 709, 711-13 (10th Cir.2000); United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir.1999). On numerous occasions, we have also acknowledged the general permissibility of including these waivers in plea agreements. See, e.g., DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir. 2000); United States v. Morrison, 171 F.3d 567, 568 (8th Cir.1999); United States v. Michelsen, 141 F.3d 867, 868-73 (8th Cir.1998).

The policy reasons supporting an appeal waiver were summarized in United States v. Rutan:

[t]he chief virtues of plea agreements are speed, economy, and finality. Waivers of appeal in plea agreements preserve the finality of judgments and sentences imposed pursuant to valid pleas of guilty. We also note that plea agreements are of value to the accused in order to gain concessions from the government.

956 F.2d 827, 829 (8th Cir.1992) (internal citations omitted).

We further note that the right to appeal is not a constitutional right but rather "purely a creature of statute." Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); see 18 U.S.C. § 3742. The Supreme Court has held that a defendant can waive certain constitutional rights by entering a guilty plea. For example, in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), the Supreme Court stated that "a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination." Id. at 29, 113 S.Ct. 517; see also United States v. Gray, 152 F.3d 816, 819-20 (8th Cir.1998) (discussing the constitutional rights a defendant waives by entering a guilty plea and citing to Parke). Given that the Supreme Court has allowed a defendant to waive constitutional rights, we would be hard-pressed to find a reason to prohibit a defendant from waiving a purely statutory right. Other circuits have adopted a similar rationale for approving the use of these waivers. See, e.g., Teeter, 257 F.3d at 21-22; Khattak, 273 F.3d at 561; United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990).

We see no rational basis for challenging the general premise that a defendant can enter into a plea agreement that waives appellate rights. We have, however, imposed limits on the use of these waivers and we reaffirm these limits here. When reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily. Even when these conditions are met, however, we will not enforce a waiver where to do so would result in a miscarriage of justice.

A. Scope of Waiver

Plea agreements are essentially contracts between the defendant and Government. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir.1994). However, these agreements are subject to special limitations given their unique nature. Significantly, this Court stated in Margalli-Olvera that "[a]pplication of these contract principles is tempered by the constitutional implications of a plea agreement." Id. Also important was our statement that "[w]here a plea agreement is ambiguous, the ambiguities are construed against the government." Id. at 353. Interpreting plea agreements in this manner reflects the fact that these agreements are normally drafted by the Government and involve significant rights of a defendant. As such, the burden of proof is on the Government to demonstrate that a plea agreement clearly and unambiguously waives a defendant's right to appeal. Id.

In United States v. Hernandez, the Second Circuit stated that while waivers of appellate rights are generally valid, these waivers "are to be applied `narrowly' and construed `strictly against the Government.'" 242 F.3d 110, 113 (2001) (internal citation and quotations omitted). The court then concluded that the waiver in Hernandez did not prohibit the defendant from challenging the district court's refusal to allow him to withdraw a guilty plea. Id. at 114. We agree with the position taken by the Second Circuit. Plea agreements will be strictly construed and any ambiguities in these agreements will be read against the Government and in favor of a defendant's appellate rights.

B. Knowing and Voluntary

A defendant must enter into a plea agreement and waiver knowingly and voluntarily for these agreements...