United States v. Morrison

• Decision Date: 25 January 2017
• Docket Number: No. 16-5452,16-5452
• Citation: 852 F.3d 488
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jermaine MORRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

852 F.3d 488

UNITED STATES of America, Plaintiff-Appellee,

v.Jermaine MORRISON, Defendant-Appellant.

No. 16-5452

United States Court of Appeals, Sixth Circuit.

Decided and Filed January 25, 2017^*

ON BRIEF: David M. Bell, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Marques T. Young, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

COOK, Circuit Judge.

Jermaine Morrison pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In a written plea agreement, Morrison waived his right to appeal "any sentence imposed by the Court ... so long as it is within the applicable guideline range, or lower, whatever that guideline range might be." Morrison appealed, arguing that a change in the law entitles him to a reduced sentence and renders his appeal waiver unenforceable. Because we enforce the waiver as written, we dismiss Morrison's appeal.

I.

At sentencing, the prosecutor argued that Morrison's prior conviction for Tennessee aggravated burglary qualified as a "crime of violence," setting his applicable Guidelines range at 77 to 96 months' imprisonment. Although Morrison opposed the government's classification, his objection never stood a chance. At the time the district court sentenced Morrison, the Sentencing Guidelines defined "crime of violence" to include "burglary of a dwelling."¹ USSG §§ 2K2.1 & cmt. (n.1), 4B1.2(a) (2015). Additionally, in United States v. Ozier , this court held that although Tennessee's aggravated-burglary statute criminalizes more conduct than "generic" burglary under the Guidelines, the statute is "divisible"—i.e., lists multiple offenses in the alternative. 796 F.3d 597, 600–03 (6th Cir. 2015). That being so, we permitted courts to review a "limited class of documents ... to determine which alternative formed the basis of the defendant's prior conviction." Id. at 600 (omission in original) (quoting Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ), abrogated by Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Bound by Ozier and the version of the Guidelines in effect at the time of sentencing, the district court examined Morrison's plea colloquy from his earlier conviction and, after determining that he had burglarized a "dwelling," overruled Morrison's objection and imposed a 96-month sentence.

Morrison appealed. While his appeal was pending, two legal developments cast doubt on Tennessee aggravated burglary's classification as a crime of violence. First, the Supreme Court in Mathis v. United States clarified what makes a statute divisible, abrogating Ozier . See Mathis , 136 S.Ct. at 2251 & n.1. Second, we granted rehearing en banc to decide whether Tennessee's aggravated-burglary statute criminalizes more conduct than generic burglary under the Armed Career Criminal Act, and if so, whether it is divisible in light of Mathis . United States v. Stitt , 646 Fed.Appx. 454 (6th Cir. 2016) (Mem.). Stitt is currently pending before the court.

II.

On appeal, Morrison argues that Tennessee aggravated burglary no longer qualifies as a crime of violence under the Guidelines and asks to be resentenced. But before addressing the merits, we must determine whether Morrison's appeal waiver forecloses our consideration of his request. It does.

We will enforce an appeal waiver included in a plea agreement when the agreement is made knowingly and voluntarily. United States v. Toth , 668 F.3d 374, 378 (6th Cir. 2012) (citing United States v. Fleming , 239 F.3d 761, 764 (6th Cir. 2001) ). Morrison may challenge his waiver of appeal rights only "on the grounds that it was not knowing and voluntary, was not taken in compliance with Fed. R. Crim. P. 11, or was the product of ineffective assistance of counsel." United States v. Detloff , 794 F.3d 588, 592 (6th Cir. 2015) (quoting United States v. Atkinson , 354 Fed.Appx. 250, 252 (6th Cir. 2009) ).

Here, Morrison makes no effort to undermine the voluntariness of his plea agreement, nor does he assert a violation of Federal Rule of Criminal Procedure 11. Our independent review of Morrison's plea hearing confirms that he voluntarily waived his appellate rights. The district court informed Morrison that he was giving up his right to appeal any sentence within the Guidelines range, and explained the few narrow exceptions to that waiver (ineffective-assistance-of-counsel or prosecutorial-misconduct claims). When asked if he understood, Morrison said "Yes, sir."

Morrison instead relies on the change wrought by Mathis to maintain that he could not knowingly waive his right to appeal. It is well settled, however, that a change in law cannot render a plea agreement unknowing. See Brady v. United States , 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ; United States v. Bradley , 400 F.3d 459, 463 (6th Cir. 2005) ("[W]here developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature."). This rule reflects the sound judgment that a plea agreement, like any other contract, allocates risk. Bradley , 400 F.3d at 464. By waiving the right to appeal, a defendant assumes the risk that a shift in the legal landscape may engender buyer's remorse. Id. ; see also United States v. Morgan , 406 F.3d 135, 137 (2d Cir. 2005) ("The possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.").

Accordingly, courts will enforce appeal waivers even when a legal development makes it likely that the defendant would receive a lower sentence were the defendant resentenced under the new law, and even when the legal change affects constitutional rights. For example, when the Sentencing Commission lowered the base offense levels for many drug offenses in 2008 and 2014, defendants who waived their right to appeal could not benefit from the change. See, e.g. , United States v. Ellison , No. 16–5085, 664 Fed.Appx. 507, 509–10, 2016 WL 6818855, at *2 (6th Cir. Nov. 18, 2016) (per curiam); United States v. Marquez , 570 Fed.Appx. 816, 818–19 (10th Cir. 2014) (per curiam); United States v. Polly , 630 F.3d 991, 1002 (10th Cir. 2011). Similarly, after the Supreme Court voided for vagueness the "residual clause" in the ACCA's definition of "violent felony," see Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015), courts routinely enforced the appeal waivers of prisoners who stood to benefit. See, e.g. , Sanford v. United States , 841 F.3d 578, 579–80 (2d Cir. 2016) (per curiam); In re Garner , No. 16–1655, 664 Fed.Appx. 441, 443–44, 2016 WL 6471761, at *2 (6th Cir. Nov. 2, 2016) ; United States v. Hurtado , No. 16–2021, 667 Fed.Appx. 291, 292–93, 2016 WL 3410270, at *1 (10th Cir. June 17, 2016) (per curiam); United States v. Bey , 825 F.3d 75, 83 (1st Cir. 2016) ; United States v. Blackwell , 651 Fed.Appx. 8, 10 (2d Cir. 2016) (per curiam); United States v. Ford , 641 Fed.Appx. 650, 651 (8th Cir. 2016) (per curiam). Although Morrison understandably regrets waiving his appellate rights in light of Mathis and Stitt , his "lack of clairvoyance cannot undo [that] decision." In re Garner , 2016 WL 6471761, at *2.

In an effort to circumvent his appeal waiver's preclusive effect, Morrison invokes United States v. McBride , 826 F.3d 293 (6th Cir. 2016). In McBride , the defendant's plea agreement included an "understanding" that he would be sentenced as a career offender because "he ha[d] at least two prior crime of violence convictions." Id. at 294 (alteration in original). McBride appealed his sentence following Johnson , arguing that his prior offense for bank robbery no longer qualified as a crime of violence. Id. at 295. Although we recognized that McBride's consent to his career-offender designation would normally waive his right to challenge it on appeal, we nonetheless reviewed for plain error, reasoning that "McBride could not have intentionally relinquished a claim based on Johnson [.]" Id.

But the McBride plea agreement, unlike the one here, did not include an appeal waiver; McBride simply agreed that he qualified as a career offender. Looking past the waiver-inducing effect of such a concession makes sense in those circumstances—after all, McBride could not "have intentionally relinquished" a Johnson -based challenge to his career-offender designation "considering [Johnson ] was decided after [he was] sentenced." United States v. Stines , 313 F.3d 912, 917 (6th Cir. 2002) ; see also McBride , 826 F.3d at 295. Morrison, on the other hand, could and did intentionally relinquish his right to appeal. In doing so, he assumed the risk that he would be denied the benefit of future legal developments. See, e.g. , In re Garner , 2016 WL 6471761, at *2.

Moreover, even if the district court erred in finding that Tennessee aggravated burglary qualified as a crime of violence, its conclusion was "harmless and do[es] not require a remand for re-sentencing." United States v. Ward , 506 F.3d 468, 476 (6th Cir. 2007). If the record shows that the district court would have imposed its...