U.S. v. Melancon

• Decision Date: 03 September 1992
• Docket Number: No. 91-4627,91-4627
• Citation: 972 F.2d 566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian MELANCON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 566

972 F.2d 566

UNITED STATES of America, Plaintiff-Appellee, v. Brian MELANCON, Defendant-Appellant.

No. 91-4627.

United States Court of Appeals Fifth Circuit.

Sept. 3, 1992.

Rehearing and Rehearing En Banc Denied Oct. 8, 1992.

Susan G. James, and Jeffery C. Duffey, Montgomery, Ala., for defendant-appellant.

Paul E. Naman, Asst. U.S. Atty. and Bob Wortham, U.S. Atty., Beaumont, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before JOLLY, and DUHE, Circuit Judges, and PARKER, Chief District Judge. ¹

DUHE, Circuit Judge:

Defendant-Appellant Brian Melancon seeks review of his sentence to 108 months' imprisonment for conspiring to distribute methylenedioxymethamphetamine. Because Melancon waived his right to appeal as part of his plea agreement, we dismiss.

Appellant was indicted for conspiring to distribute methylenedioxymethamphetamine (MDMA or "ecstasy") in September 1990. Appellant reached a plea agreement with the Government by July 1991. Pursuant to that agreement, Appellant pleaded guilty to conspiracy to distribute MDMA and the parties stipulated that he had possessed 36,000 tablets of the drug. Also as part of the plea agreement, Appellant waived his right to appeal his sentence. The Government contends that in light of this waiver, we should dismiss Appellant's appeal. We agree.

The right to appeal is a statutory right, not a constitutional right. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); 18 U.S.C. § 3742; 28 U.S.C. § 1291. The Supreme Court has repeatedly recognized that a defendant may waive constitutional rights as part of a plea bargaining agreement. Town of Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987). It follows that a defendant may also waive statutory rights, including the right to appeal. We so held in United States v. Sierra, No. 91-4342, slip op. at 2 (5th Cir. Dec. 6, 1991) [951 F.2d 345 (Table) ] (copy attached), in which the defendant waived the right to appeal her sentence in exchange for a limitation on her maximum term of imprisonment. Several circuits similarly have enforced such waivers. United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992); United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992); United States v. Wiggins, 905 F.2d 51, 52-54 (4th Cir.1990). ² But, as we recognized in Sierra, the waiver must be informed and voluntary. Sierra, slip op. at 3; Arrastia v. United States, 455 F.2d 736, 739 (5th Cir.1972); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.1991).

Appellant does not assert that his waiver was anything less than voluntary and, after de novo review of the record, we are satisfied that it was informed. As directed by Rule 11 of the Federal Rules of Criminal Procedure, the district court held a hearing at which it reviewed the charges and plea agreement with Appellant and his counsel. The review of the plea agreement included the following colloquy concerning Appellant's waiver of the right to appeal:

The Court: [You understand] that paragraph six of this and this is very important that you knowingly, that means you know what you are doing, and by reasoning, have exercised the choice to intelligently and voluntarily would waive the right to appeal the sentence imposed in this case on any ground, including the right of appeal conferred by Title 18, United States Code, section 3742, in exchange for the concessions made by the United States of America in this agreement, do you understand that?

Defendant Melancon: Yes, sir.

The district court informed Appellant of the statutory maximum penalty of twenty years, the imposition of supervised release, and the use of the sentencing guidelines. The court also stated that it was not bound by any agreement between the parties regarding sentencing and explained its authority to depart from the guideline sentencing range.

Although Appellant's plea agreement differs from the one enforced in Sierra in that Appellant was not promised a specific sentence, the uncertainty of Appellant's Appellant notes that at his sentencing hearing, the district court advised him that he had the right to appeal his conviction and sentence. He contends that this misstatement negates the knowingness of his waiver and proves that the district court did not believe the waiver was valid. The court's statements, however, were made four months after Appellant entered into the plea agreement with the Government; they could not have influenced Appellant's decision to plead guilty. Furthermore, any alleged uncertainty on behalf of the district court as to the legality of the agreement does not affect our determination that Appellant's waiver was voluntary, knowing, and permissible. See Rutan, 956 F.2d at 830.

                sentence does not render his waiver uninformed.   See Rutan, 956 F.2d at 830;  Wiggins, 905 F.2d at 52.   Appellant understood that the court had exclusive authority to set the sentence.   He knew that the court would do so in accordance with the sentencing guidelines and that the court had the power to depart from the guideline recommendation.   Appellant was also aware of the maximum terms of imprisonment and supervised release applicable to his crime. 3  Most important, he knew that he had a "right to appeal his sentence and that he was giving up that right."  Rutan, 956 F.2d at 830
                

Finally, Appellant argues that the Government relinquished its right to enforce the agreement because it failed to correct the court's mistake at sentencing. The Government's inaction, though not commendable, did not constitute a breach of the agreement. The Government has timely notified this Court of Appellant's waiver, and thus has preserved its right to enforce the agreement. But see United States v. Vogt, 901 F.2d 100, 102 (8th Cir.1990) (Government could not enforce plea agreement after it delayed in complaining of breach and continued to accept agreement's benefits).

We hold that a defendant may, as part of a valid plea agreement, waive his statutory right to appeal his sentence. Appellant voluntarily and knowingly entered such an agreement, waiving his right to appeal. His appeal is, therefore, DISMISSED.

Nothing in this opinion, however, should be interpreted as indicating that a district court is not free to determine whether plea waivers of the right to appeal are unacceptable. We recognize that there may be sound policy reasons for refusing to accept such waivers, and that district courts might disagree with the policy choice made by the court in this case to accept a plea agreement appeal waiver. Today, we simply decide that this district court operated within its discretion in accepting the plea agreement appeal waiver; and we note that a district court's refusal to accept such a waiver likewise would be within its discretion. SO ORDERED.

ATTACHMENT

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-4342

(Summary Calendar)

United States of America,

Plaintiff-Appellee,

versus

Consuleo (sic) Sierra,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern

District of Texas

(B-90-14-CR, B-91-18-CR)

(December 6, 1991)

Before JONES, DUHE and WIENER, Circuit Judges.

PER CURIAM: ^*

After being sentenced pursuant to conviction on a plea of guilty for possession with intent to distribute marijuana, Defendant-Appellant, Consuelo Sierra, appeals her sentence despite a provision in her plea agreement waiving her right to appeal in exchange for a limitation on her maximum prison sentence. Finding that her waiver was fully informed and voluntary and that her sentence did not exceed the maximum agreed to in the plea agreement, we dismiss Sierra's appeal.

I.

Sierra pleaded guilty to a one-count information charging her with possession of marijuana with intent to distribute. As part of the plea agreement the government limited Sierra's exposure to 36 months' imprisonment and Sierra waived her right to appeal her conviction and sentence.

The probation officer preparing Sierra's Presentence Investigation Report (PSR) recommended a base offense level of 26 because he found that the evidence supported the government's position that Sierra negotiated the sale of 375 pounds of marijuana to an undercover agent. The probation officer also recommended denying the two-level decrease for acceptance of responsibility. Sierra filed written objections to the PSR, challenging the amount of marijuana attributed to her and the denial of the reduction for acceptance of responsibility. The probation officer did not make any adjustments to his recommendations.

At sentencing, Sierra again objected to the amount of marijuana attributed to her and to the denial of the two-level reduction for acceptance of responsibility. The district court found that Sierra could have reasonably produced the negotiated amount of marijuana and denied the first objection, but granted the two-level decrease for acceptance of responsibility. Sierra's resulting base offense level of 24 and criminal history category of I yielded a guideline range of 51 to 63 months. In accordance with the plea agreement, however, the district court departed from the guideline range to sentence Sierra to 24 months' imprisonment, 5 years' supervised release, and a $50 special assessment. Sierra filed a timely notice of appeal.

II.

On appeal the government argues that Sierra's appeal should be dismissed because she waived the right to appeal her conviction and sentence as part of her plea agreement. The right to appeal is a statutory right not a constitutional right. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); 18 U.S.C. § 3742; 28 U.S.C. § 1291. The Supreme Court has held that a defendant may waive constitutional rights as part of a plea bargaining agreement, Town of Newton v. Rumery, 480...