U.S. v. Buchanan

• Decision Date: 06 July 1995
• Docket Number: No. 94-10056,94-10056
• Citation: 59 F.3d 914
• Parties: 95 Daily Journal D.A.R. 8943 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence BUCHANAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 914

59 F.3d 914

95 Daily Journal D.A.R. 8943

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence BUCHANAN, Defendant-Appellant.

No. 94-10056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1994.

Decided July 6, 1995.

John C. Lambrose, Asst. Federal Public Defender, Las Vegas, NV, for defendant-appellant.

Rimantas A. Rukstele, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: TANG, SCHROEDER, and REINHARDT, Circuit Judges.

Opinion by Judge TANG; Partial Concurrence and Partial Dissent by Judge REINHARDT.

TANG, Senior Circuit Judge:

Lawrence Buchanan appeals his eighteen-month sentence, which was imposed after Buchanan pleaded guilty to one count of mail fraud and one count of failure to appear. Specifically, Buchanan contends that the district court erroneously calculated his criminal history score. The government argues that Buchanan cannot challenge his sentence because he knowingly and voluntarily waived his right to appeal his sentence in his plea agreement. We have jurisdiction under 28 U.S.C. Sec. 1291 and find that the waiver of appellate rights contained in Buchanan's plea agreement is unenforceable. We affirm, however, the district court's calculation of Buchanan's criminal history score.

I. BACKGROUND

In December 1991, Raymond E. Albretsen approached Buchanan for help in disposing of a Toyota 4-Runner so he could claim an insurance loss. Joseph Holmes, an FBI informant, procured a buyer. Buchanan sold the vehicle to that buyer and retained the profit from the sale. Albretsen later reported the Toyota stolen to his insurance company. The insurance company reimbursed him for the claimed loss. In June 1992, Buchanan arranged a similar transaction for David A. Brock.

In July 1992, Buchanan was arrested for altering the vehicle identification number ("VIN") of a 1977 Corvette procured from Holmes in 1990. He pleaded guilty to a misdemeanor in Nevada state court and was sentenced to two years of probation in December 1992.

On December 16, 1992 and January 6, 1993, a federal grand jury sitting in Las Vegas returned indictments charging Buchanan with conspiracy and mail fraud. While on probation for the state offense, Buchanan failed to appear for his federal mail fraud and conspiracy trial scheduled for April 5, 1993. He was arrested approximately two weeks later in California and was returned to Nevada for trial. On April 14, 1993, the grand jury indicted Buchanan for failing to appear for trial. One month later, Buchanan made his initial appearance in the district of Nevada on the failure to appear indictment and was released on a personal recognizance bond.

Buchanan entered pleas of guilty to the mail fraud and failure to appear charges on September 22, 1993. ¹ In the plea agreement, Buchanan waived the right to appeal his sentence, so long as the sentence was within the applicable United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") range. The waiver would not apply if there was a departure outside the Guidelines range.

During the September 1993 plea hearing, the district court judge reviewed the charges brought against Buchanan and asked Buchanan whether he understood the contents of his plea agreement. He answered that he understood the plea agreement and the consequences of his guilty plea. The prosecutor read the entire plea agreement out loud in open court.

On January 4, 1994, Buchanan appeared for sentencing. At that hearing, Buchanan orally moved to withdraw his guilty plea on the ground that his original attorneys had not fully informed him of unfavorable stipulations in the plea agreement. Buchanan specifically complained about the provision in the plea agreement that barred arguments at sentencing for downward departures. During the discussions on that issue, the district court stated that Buchanan "could appeal the sentencing findings." At the close of the hearing, the court delayed sentencing to allow Buchanan to file a motion to withdraw. Buchanan did not file such a motion; instead, on January 20, 1994, the parties filed a modification to the plea agreement that permitted both parties to argue for a departure. As a result of the modification, Buchanan agreed to drop his ineffective assistance of counsel claim.

Buchanan reappeared for sentencing on January 21, 1994. At that hearing, despite the waiver clause in Buchanan's plea agreement, the district court judge explicitly informed Buchanan that he had a right to appeal his sentence. The judge set the base offense level at thirteen and placed Buchanan in criminal history category III. The resulting imprisonment range was 18-24 months. The district court imposed a seventeen-month sentence on the mail fraud charge and a consecutive one-month sentence on the failure to appear charge.

II. DISCUSSION

On appeal, Buchanan argues that the district court erred in calculating his criminal history score. Before we reach the merits of the sentencing issue, we must first address the government's claim that Buchanan waived his right to appeal when he signed his plea agreement.

A. Waiver of Right to Appeal

We review de novo the validity of a waiver of appellate rights. U.S. v. Bolinger, 940 F.2d 478, 479 (9th Cir.1991) (citing U.S. v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir.1990), cert. denied, 503 U.S. 942, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992)).

A defendant may waive the statutory right to appeal his sentence. Navarro-Botello, 912 F.2d at 321. However, an express waiver of the right to appeal a sentence is valid only if knowingly and voluntarily made. Bolinger, 940 F.2d at 480; Navarro-Botello, 912 F.2d at 322. We look to circumstances surrounding the signing and entry of the plea agreement to determine whether the defendant agreed to its terms knowingly and voluntarily. See, e.g., Navarro-Botello, 912 F.2d at 321.

In this case, the record sufficiently shows that Buchanan entered into the plea agreement knowingly and voluntarily. ² Our inquiry into the enforceability of the waiver provision centers on the district court's statements during the January 4, 1994 and January 21, 1994 sentencing hearings, where the district court stated that Buchanan had a right to appeal his sentence.

On January 4, 1994, the parties discussed with the court, inter alia, whether Buchanan should be allowed to withdraw his guilty plea because of ineffective assistance of counsel. During that discussion, the judge stated:

Is that really what--what I hear are words that the plea agreement, you know, was the product of ineffective assistance of counsel[?] That raises in the specter of my mind no matter what we do here today, certainly Mr. Buchanan has a right under Rule 32 to appeal the sentencing findings, but he also has a right to collaterally attack his conviction under 2255 of Title 28 if he believes it was the product of ineffective assistance of counsel.

At the January 21, 1994 sentencing hearing, the same district court judge explicitly advised Buchanan of his right to appeal. This time, the record shows that Buchanan acknowledged the court's instruction:

THE COURT: ... I want to advise you as well that under the provisions of Rule 32 of the Federal Rules of Criminal procedure you have the right to appeal findings which I make today regarding sentencing. To do that, you must file that notice of appeal within ten (10) days of this date. Do you understand that?

THE DEFENDANT: Yes, sir.

This colloquy indicates that Buchanan understood the court's affirmative advice that he had a right to appeal despite the contrary indication in the plea agreement.

Because of the district court judge's statements, Buchanan could have a reasonable expectation that he could appeal his sentence. In United States v. Munoz-Dela Rosa, 495 F.2d 253 (9th Cir.1974), the district court judge, at sentencing, incorrectly informed Munoz-Dela Rosa that his federal sentence would run concurrently with a sentence previously imposed by a magistrate. Id. at 254. The subsequent written judgment correctly stated that the sentences were to run consecutively. Id. We held that, where there is a direct conflict between a trial judge's unambiguous oral pronouncement of sentence and the written judgment, the oral pronouncement must control, even if erroneous. Id. at 256. In discussing the Munoz-Dela Rosa court's reasoning, we explained, "In Munoz-Dela Rosa, the defendant was told to his face that the sentences would run concurrently. He, therefore, had a reasonable expectation that they would run concurrently." United States v. O'Brien, 789 F.2d 1344, 1347 (9th Cir.1986).

Similarly, here, the oral pronouncement must control. The district court twice stated that Buchanan had a right to appeal his sentence. Indeed, Buchanan's answer of "Yes, sir" to the district court's question of whether he understood that he had a right to appeal indicates Buchanan's expectation that he could appeal his sentence and evinces a misunderstanding of the substance of his plea agreement. We note also that the government did not object to the district court's erroneous statements. Thus, Buchanan could have no reason but to believe that the court's advice on the right to appeal was correct.

Litigants need to be able to trust the oral pronouncements of district court judges. Given the district court judge's clear statements at sentencing, the defendant's assertion of understanding, and the prosecution's failure to object, we hold that in these circumstances, the district court's oral pronouncement controls and the plea agreement waiver is not enforceable.

We now turn to the merits of Buchanan's appeal.

B. Calculation of Criminal History Category

We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994).

At sentencing, the district court gave Buchanan...