U.S. v. Johnson

Decision Date28 August 2008
Docket NumberNo. 08-10029. Non-Argument Calendar.,08-10029. Non-Argument Calendar.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marcus Aurelius JOHNSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael Herskowitz, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

WILSON, Circuit Judge:

Marcus Aurelius Johnson ("Johnson") appeals the district court's order of restitution on the sole ground that it was imposed 39 months after his sentence was imposed, well past the 90-day period required by 18 U.S.C. § 3664(d)(5). The government moves to dismiss because Johnson knowingly and voluntarily executed an appeal waiver as part of his plea agreement. For the reasons set forth below, we grant the government's motion to dismiss.

I. BACKGROUND

On May 21, 2004, Johnson was charged in an information with conspiracy to commit identification document fraud in violation of 18 U.S.C. § 1028(f). Shortly thereafter, on May 26, Johnson entered into a negotiated plea agreement, the terms of which included an appeal waiver:

LIMITED WAIVER OF APPEAL: To the maximum extent permitted by federal law, the defendant voluntarily and expressly waives the right to appeal sentence and the right to collaterally attack sentence in any post-conviction proceeding on any ground, except that the defendant may file a direct appeal of (1) an upward departure from the otherwise applicable sentencing guideline range; and/or (2) the sentencing court's finding as to the application of § 2b1.1(B)(1) of the Sentencing Guidelines in the event the loss amount is determined to exceed $30,000.

(Plea Agreement, Government's Motion to Dismiss, Ex. B at 5.)

The plea agreement further provided, above Johnson's signature:

I have also discussed with my attorney the rights I may have to appeal or challenge my sentence, and I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my sentence or challenging my sentence in any post-conviction proceeding.

(Id. at 6.)

During the plea colloquy, Johnson advised the court that he understood that the plea agreement contained a waiver of his right to appeal except in the limited instances of an upward departure from the sentencing guidelines or in the event the restitution amount exceeded $30,000:

Court: What are the circumstances in which Mr. Johnson would be able to appeal?

Johnson's Attorney: Yes, your Honor. We will have the ability to appeal any upward departure [or if] the loss amount is determined to exceed $30,000 ....

Court: Okay. But do you understand you would not have any right to appeal?—

Johnson: Yes.

Court:—Or to file a later lawsuit challenging your sentence on any other grounds?

Johnson: Yes.

(Tr. Plea Hearing, Government's Motion to Dismiss, Ex. C at 10-11.)

On September 10, 2004, Johnson was sentenced to twenty-six months in prison, three years of supervised release, a special assessment of one hundred dollars, and an amount of restitution to be determined. Over three years later, on December 20, 2007 the district court amended the judgment and ordered Johnson to pay restitution in the amount of $21,593.70. It is undisputed that neither of the exceptions to the appeal waiver are at issue. The sentence was within the guidelines range and the order of restitution did not exceed $30,000.00.

II. DISCUSSION

We review the validity of a sentence appeal waiver de novo. United States v. Weaver, 275 F.3d 1320, 1333 n. 21 (11th Cir.2001). A sentence appeal waiver must be made knowingly and voluntarily. Id. The waiver is valid if the government shows either that: (1) the district court specifically questioned the defendant about the waiver; or (2) the record makes clear that the defendant otherwise understood the full significance of the waiver. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.1993).

Johnson argues that, notwithstanding his sentence appeal waiver, he may appeal the amended judgment because the district court issued a restitution order that was untimely pursuant to 18 U.S.C. § 3664(d)(5).1 Johnson cites to United States v. Maung, 267 F.3d 1113 (11th Cir. 2001), wherein we stated that § 3664(d)(5) prohibits a district court from "impos[ing] a sentence and then delay[ing] determination of the amount of losses more than 90 days from sentencing." Id. at 1121. Johnson argues that this untimeliness rendered the sentence illegal and that even a valid waiver should not preclude us from vacating it. In support, Johnson cites United States v. Andis, 333 F.3d 886 (8th Cir.2003) (en banc), in which the Eighth Circuit held that imposition of an illegal sentence constituted "a miscarriage of justice" and may be appealed despite the existence of an otherwise valid waiver. Id. at 891-92.

The government argues that Johnson knowingly and voluntarily waived his right to appeal his sentence as evidenced by the clear terms of the plea agreement as well as by the district court's specific questioning of Johnson at the plea hearing. The government argues that because restitution is part of a criminal defendant's waiver, see United States v. Satterfield, 743 F.2d 827, 837 (11th Cir.1984) ("There can be little doubt that Congress intended the restitution penalties of the VWPA [Victim and Witness Protection Act of 1982, 18 U.S.C. § 36632] to be incorporated into the traditional sentencing structure."), a waiver of the right to appeal a sentence necessarily includes a waiver of the right to appeal the restitution imposed. The government asserts that, although the Eighth Circuit recognized a "miscarriage of justice" exception, the court cautioned that the exception was "a narrow one and w[ould] not be allowed to swallow the general rule that waivers of appellate rights are valid." Andis, 333 F.3d at 891. The government states that Johnson does not object to the substance of the amended sentence (the amount of restitution did not exceed the $30,000 threshold), but merely that the court acted untimely; thus, the sentence itself did not violate Johnson's right to due process or result in a miscarriage of justice.

In United States v. Kapelushnik, 306 F.3d 1090 (11th Cir.2002), we held that where "the district court fails to [issue an order of restitution] within the 90-day limitations period, the judgment of conviction becomes final and contains no enforceable restitution provision." Id. at 1093-94. In Maung, however, we indicated that in limited circumstances a district judge may impose restitution after the 90-day period, such as "in cases where the defendant's own bad faith" causes the delay. Maung, 267 F.3d at 1122 ("Allowing the defendant's own bad faith delay to foreclose the entry of a restitution order could conceivably put restitution in some cases in the defendant's own discretion."). Thus, although the question was not before us, we recognized the possibility that the 90-day period could be equitably tolled. Id. Our reasoning in Maung comports with the well established rule that equitable tolling principles "are read into every federal statute of limitation" absent congressional intent to the contrary. Cook v. Deltona Corp., 753 F.2d 1552, 1562 (11th Cir.1985); see also Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir.1998) (same); Hill v. Texaco, Inc., 825 F.2d 333, 334 (11th Cir.1987) (same).

Because the statute of limitations may be equitably tolled, it is not jurisdictional. See Dakane v. U.S. Att'y Gen., 399 F.3d 1269, 1272 n. 3 (11th Cir.2005) (per curiam) (explaining that federal statutory limitations period under scrutiny was "`mandatory and jurisdictional' [and therefore] not subject to equitable tolling"); Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 588-89 (5th Cir.1981) (distinguishing between jurisdictional prerequisites and statutes of limitations that can be equitably tolled).3 The crux of Johnson's appeal, therefore, is whether the factual circumstances of this case permitted the district court to equitably toll the 90-day limitations period. We do not reach that question, however, because we find that Johnson waived his statutory right4 to appeal his sentence.

Johnson does not dispute that his waiver was knowing and voluntary; that he explicitly waived an appeal as to restitution so long as the amount did not exceed $30,000; or that the amount of restitution is, in fact, under $30,000. That Johnson may have a meritorious argument on whether the court erred in effectively equitably tolling the limitations period does not overcome his waiver in this instance. As we have said previously, "[w]aiver would be nearly meaningless if it included only those appeals that border on the frivolous." United States v. Howle, 166 F.3d 1166, 1169 (11th Cir.1999). The waiver includes more than just difficult or debatable legal issues; it includes "waiver of the right to appeal blatant error." Id.; United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.2005) (per curiam).

We recognize, however, that an effective waiver is not an absolute bar to appellate review. In Bushert, we commented that "a defendant who has executed an effective waiver does not subject himself to being sentenced entirely at the whim of the district court." Bushert, 997 F.2d at 1350 (internal quotation marks omitted). We indicated that "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 constitutionally impermissible factor such as race." Id. at 1350 n. 18 (internal quotation marks omitted). We also stated that "[i]t is both axiomatic and jurisdictional that a court of the United States may not impose a penalty for a crime beyond that...

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