United States v. Thornsbury

• Decision Date: 02 March 2012
• Docket Number: No. 11–7109.,11–7109.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kerney Ray THORNSBURY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

670 F.3d 532

UNITED STATES of America, Plaintiff–Appellee,

v.Kerney Ray THORNSBURY, Defendant–Appellant.

No. 11–7109.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 24, 2012.Decided: March 2, 2012.

ARGUED: Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. John Lanier File, Office of the United States Attorney, Beckley, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Charleston, West Virginia, for Appellee.

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Dismissed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge AGEE joined.

OPINION

DUNCAN, Circuit Judge:

Kerney Ray Thornsbury pleaded guilty to being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). As part of a plea agreement, Thornsbury waived his right to appeal “any sentence.” During Thornsbury's subsequent incarceration, the government filed a motion pursuant to Federal Rule of Criminal Procedure 35(b), seeking to reduce his sentence in light of his assistance to the government in prosecuting an unrelated case. The district court denied this motion, and Thornsbury appealed. Because we conclude that it is within the scope of Thornsbury's appellate waiver, we dismiss the appeal.

I.

A.

On October 2, 2009, Thornsbury was charged with possession of ammunition after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pursuant to a plea agreement, Thornsbury pleaded guilty to this charge on October 7, 2009. As part of this plea agreement, Thornsbury waived his appellate rights as follows:

Mr. Thornsbury knowingly and voluntarily waives his right to seek appellate review of any sentence of imprisonment or fine imposed by the District Court, or the manner in which the sentence was determined, on any other ground whatsoever including any ground set forth in 18 U.S.C. § 3742, so long as that sentence of imprisonment or fine is below or within the Sentencing Guideline range corresponding to offense level 20.

S.J.A. 5. The government similarly waived its right to appeal any sentence “within or above the Sentencing Guideline range corresponding to offense level 17.” Id. Both Thornsbury and his counsel signed this agreement.

Before accepting Thornsbury's guilty plea, the district court, pursuant to Federal Rule of Criminal Procedure 11,¹ explained the terms of the appellate waiver, and questioned Thornsbury about his understanding of those terms. The district court asked if Thornsbury understood that, by agreeing to the waiver, he was giving up his right to “argue that certain errors may have taken place before the district court” should he be sentenced “within or below the guideline range corresponding with offense level 20.” S.J.A. 28–29. Thornsbury responded that he understood. The district court further inquired whether Thornsbury had “reviewed the plea agreement in detail with [his] attorney.” S.J.A. 30. Thornsbury responded that he had.

On March 25, 2010, the district court held a sentencing hearing. The district court first calculated a base offense level of 20. It then reduced the offense level to 17 as a result of Thornsbury's acceptance of responsibility. This offense level, applied to Thornsbury's criminal history category of II, yielded a sentencing guidelines range of 27 to 33 months. After analyzing the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Thornsbury to 33 months' imprisonment and three years of supervised release.²

B.

While incarcerated and awaiting sentencing, Thornsbury was assaulted and robbed by fellow inmates. In the ensuing investigation, Thornsbury provided assistance to the government, including testifying against the orchestrator of the attack, Alphonso Harper. As a result of this cooperation, Thornsbury was again assaulted by an associate of Harper.

In return for his assistance in investigating Harper, the government, on May 31, 2011, filed a Motion to Reduce Sentence Pursuant to Rule 35. Rule 35 states, in relevant part, “Upon the government's motion ... the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” Fed.R.Crim.P. 35(b)(1). After describing Thornsbury's assistance, the government noted that Thornsbury's “cooperation could continue to put him at risk while incarcerated” and concluded that Thornsbury “effectively assisted the United States in a significant case and that assistance should be rewarded.” J.A. 51. The government recommended that Thornsbury's sentence be reduced to correspond to an “offense level [of] 16, which would result in a range of 24 to 30 months.” Id. Thornsbury, through his counsel, filed a memorandum in support of the government's motion.

On August 4, 2011, the district denied the government's motion. The district court stated, in relevant part:

Defendant has served about twenty-nine (29) months of his thirty-three (33) month sentence and now seeks to have his sentence reduced by three (3) months due to his assistance to the Government. The nature of this assistance appears to be solely regarding matters in which he was the victim. While Defendant's safety is of concern, it does not override the Court's original consideration of the sentencing factors, particularly the seriousness of the offense, deterrence and public safety, set forth in 18 U.S.C. § 3553(a)....

Having carefully considered the Government's motion and its basis, Defendant's response, and having further reviewed the presentence investigation report, the Court finds that Defendant should not receive a reduction of his sentence under Rule 35. Accordingly, the Court ORDERS that the Motion of the United States to Reduce Defendant's Sentence Pursuant to Rule 35 of the Federal Rules of Criminal Procedure [Docket 92] be DENIED.

J.A. 60–61. Thornsbury filed a timely notice of appeal.

II.

On appeal, Thornsbury relies on our decision in United States v. Clawson, 650 F.3d 530 (4th Cir.2011), to challenge the method employed by the district court in deciding to deny the government's Rule 35(b) motion to reduce his sentence. Specifically, Thornsbury argues that the district court erred in denying the motion based on factors other than his assistance to government. ³ The government responds by challenging the substance of Thornsbury's argument, our jurisdiction to hear the appeal, and Thornsbury's right to bring the appeal. The government argues that the district court did not rely on non-assistance factors in denying its Rule 35(b) motion and, alternatively, argues both that this court lacks jurisdiction to hear the appeal, and that, in any case, Thornsbury affirmatively waived his right to appeal the denial.

We first examine our jurisdiction and then consider whether Thornsbury has waived his right to appeal this issue. Because we find the latter issue to be dispositive, we do not consider the merits of the appeal.

A.

We turn first to an examination of our jurisdiction. The right to appeal is not a constitutional guarantee, but must instead be found in an applicable statute. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In United States v. Pridgen, 64 F.3d 147, 149 (4th Cir.1995), we held that an appeal of “the decision of a district court to deny the Government's Rule 35(b) motion, and therefore to leave the previously imposed sentence undisturbed, is an appeal from an otherwise final sentence.”

The circumstances in which a final sentence may be appealed are set out in 18 U.S.C. § 3742, which provides, in pertinent part, that a defendant may appeal a final sentence if it:

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a).

Thornsbury claims we have jurisdiction to hear his appeal pursuant to subsection (1) of § 3742(a). We agree. On appeal, Thornsbury contends that the district court violated Rule 35(b) by basing its decision to deny the government's motion on factors other than Thornsbury's assistance to the government. If Thornsbury is correct that a district court cannot base its decision to deny a Rule 35(b) motion on factors other than a defendant's assistance to the government and that the district court here considered such factors, then the district court acted contrary to Rule 35(b) in determining Thornsbury sentence, thus imposing a sentence “in violation of law.” Such an appeal falls squarely under § 3742(a)(1).

In response, the government relies on our decision in Pridgen, which the government describes as containing a “plainly-stated ban on appeals of denials of Rule 35(b) motions.” Appellee's Br. 12. Pridgen contains no such ban, plainly stated or otherwise. In Pridgen, we held that a defendant may not appeal “the merits of the decision of the district court not to” grant a Rule 35(b) motion. 64 F.3d at 150 (emphasis added). It is this holding on which the government focuses. But, importantly, in Pridgen, we went on to allow the defendant to challenge the denial of a Rule 35(b) motion on the basis that the district court improperly denied him an evidentiary hearing. See id. We reasoned...