U.S. v. Agee

• Decision Date: 09 May 1996
• Docket Number: No. 94-2440,94-2440
• Citation: 83 F.3d 882
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard AGEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 882

83 F.3d 882

UNITED STATES of America, Plaintiff-Appellee, v. Leonard AGEE, Defendant-Appellant.

No. 94-2440.

United States Court of Appeals Seventh Circuit.

Argued Dec. 1, 1995.

Decided May 9, 1996.

Ralph M. Friederich, Deirdre Dubrorow (argued), Office of U.S. Atty., Criminal Div., Fairview Heights, IL, for plaintiff-appellee.

Michael C. Just (argued), Chicago, IL, for defendant-appellant.

Before CUMMINGS, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Leonard Agee pled guilty to one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He was initially sentenced by the district judge to 70 months of incarceration on both counts, to be served concurrently. Agee's sentence was later reduced to 60 months. Agee appeals his sentence, claiming he was entitled to a reduction for his minimal or minor role in the conspiracy. We remand for further determinations by the district court.

I.

On February 20, 1993, an Illinois State Trooper stopped a Ford rental car, driven by Agee, for speeding. One of Agee's co-defendants, Leroy Braxton, was a passenger in the car. Agee told the officer that the car had been rented in California and that they were en route to Ohio. The officer asked for and received verbal and written consent to search the car. The trooper found close to five kilograms of cocaine behind the back seat. Agee was charged with conspiring with co-defendants Leroy Braxton and Leroy Eric Braxton (the Braxtons are father and son) to distribute cocaine and with possession with intent to distribute cocaine.

On March 21, 1994, after several unsuccessful motions to suppress, Agee plead guilty to the charges against him. The plea was an "open plea," i.e., there was no written plea agreement. At the change of plea hearing, the judge sought to confirm that Agee's plea was knowing and voluntary. ¹ The judge discussed with Agee the rights he was foregoing (such as his right to a trial by jury, to testify, and to confront and compel witnesses) and the possible consequences of his plea under the Sentencing Guidelines. The judge also reminded Agee of his right to appeal, under some circumstances, any sentence imposed. Agee was informed that a presentence investigation report ("PSI") had to be prepared, upon which the judge would base his sentence, and that he would have an opportunity to object to any of the conclusions in the PSI.

A PSI was prepared and a sentencing hearing was held on June 2, 1994. The PSI determined Agee's Sentencing Guideline range to be 78 to 97 months, based on a total offense level of 28 and criminal history category of I. Agee's primary objection to the PSI was that it did not recommend an offense level reduction for his minimal or minor role in the conspiracy under U.S.S.G. § 3B1.2. The government stipulated to the following relevant facts set forth in Agee's written objection and recited by defense counsel at the hearing: 1) Agee never expressly agreed to help the Braxtons transport cocaine from California to Ohio, though he "knew" what the Braxtons were doing and went along; 2) Agee never received any money for the trips he made for the Braxtons, though he was promised $500 for each trip; 3) Agee never saw the cocaine; 4) he did not help hide the cocaine in the car; 5) Agee never knew how much cocaine they were carrying; 6) his fingerprints were not found on the cocaine, though one of the Braxtons' prints was; 7) Agee did not know and never contacted any of the people involved in selling the cocaine to the Braxtons--Leroy Eric Braxton had the California contacts; and 8) Agee did not know to whom the cocaine was going to be sold to in Ohio. Defense counsel argued that these facts entitled Agee to a four, three, or two-level offense reduction for his minimal or minor role in the conspiracy. Agee therefore requested a 60 month term--the statutory mandatory minimum. The government objected to the mitigating role reduction because Agee admitted that he had made a previous trip to California to transport cocaine for the Braxtons (so this was not a one time incident) and that he was to receive cash payments from the Braxtons.

The trial court overruled Agee's objections and adopted the factual findings and guideline application recommendation in the PSI, although the court did grant Agee an additional offense level reduction for acceptance of responsibility. Thus, the court determined Agee's sentencing range to be 70 to 87 months and sentenced him to the lowest possible term of 70 months. In refusing to grant an offense level reduction based upon Agee's role in the offense, the court stated:

I think Mr. Agee clearly cannot claim a 4 level reduction for minimal participation. He made more than one trip involved in the importation of cocaine from California to Ohio. He knew what was going on. He may not have been at the higher level of the conspiracy, but when one goes to sorting out the roles played by various participants in a conspiracy, you get into some gray and fuzzy areas as to exactly what role is played. Of course, it's very clear if someone is the leader of it that is easy, and if ... they unloaded a barge of marijuana on one occasion, then that too is an easy assignment, but where there has been a participant, as is this case, of the nature that was Mr. Agee's involvement, I don't believe that Mr. Agee qualifies for either a minimal or minor reduction....

(emphasis added).

The government asserts that, at some point after sentencing, Agee verbally agreed to waive his right to appeal if the government would file a Rule 35(b) motion requesting the court to reduce Agee's sentence from 70 to 60 months. Under Rule 35(b), the government may move to reduce a defendant's sentence for his substantial assistance to the government. ² The agreement was apparently negotiated through Agee's counsel and the Assistant U.S. Attorney. On June 8th, 1994, defense counsel sent a letter to the prosecutor confirming the agreement they had reached. There was, however, no written agreement or other documentation signed by Agee indicating his knowledge or understanding of the agreement or his consent to the terms of the deal. Agee filed his notice of appeal on June 10, 1994--at this point the government had not yet filed its 35(b) motion. On July 13, 1994, the government did move to reduce Agee's sentence 10 months for his substantial cooperation, and on July 14th the court reduced Agee's sentence to 60 months. The government's motion did not mention that the reduction was in exchange for Agee's waiver of his right to appeal; it only represented that it was for his substantial assistance. There is, therefore, no evidence that the trial judge was aware of this collateral, post-plea agreement.

Once the government had fulfilled its part of the agreement, Agee's attorney prepared a Motion to Dismiss Appeal and mailed acknowledgement and consent to waiver of appeal forms to Agee on July 15, 1994. Upon receiving no response from Agee, his counsel again sent the dismissal forms to him on August 4, 1994. On August 19, 1994, defense counsel moved to withdraw as Agee's appointed counsel. In her motion, counsel explained that she had reached the verbal understanding with the government with Agee's "express consent," that the government had fulfilled its part of the bargain, and that Agee now refused to honor his part of the agreement. She requested that a new attorney be appointed, since she could not "in good conscience participate in Defendant-Appellant's effort to violate his agreement with the government." Defense counsel's motion was granted, and this appeal followed. Agee appeals only the district court's denial of any offense level reduction for his role in the conspiracy. ³

II.

As a preliminary matter, the government asserts that we lack jurisdiction over this appeal because Agee waived his right to appeal. We thus begin by addressing the government's waiver argument before reaching the merits of Agee's contention that he was entitled to an offense level reduction for his minimal or minor role in the conspiracy.

A.

Waivers of appeal as part of plea agreements are generally enforceable. United States v. Wenger, 58 F.3d 280, 281 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 349, 133 L.Ed.2d 245 (1995). The waiver, however, must have been made knowingly and voluntarily. Id. at 281-82; United States v. Schmidt, 47 F.3d 188, 190 (7th Cir.1995); see also United States v. Hendrickson, 22 F.3d 170, 174 (7th Cir.) (waiver of right to appeal "must be express and unambiguous"), cert. denied, --- U.S. ----, 115 S.Ct. 209, 130 L.Ed.2d 138 (1994); United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Through the letters and representations of defense counsel, the government has established that an agreement existed, at least between defense counsel and the prosecutor, that Agee would waive his right to appeal in exchange for a 10-month reduction in his sentence. The next inquiry is therefore to ascertain whether the record "clearly demonstrates" that Agee personally entered into the agreement and waived his right to appeal knowingly and voluntarily. Schmidt, 47 F.3d at 190 ("Obviously a waiver will be upheld only if the record clearly demonstrates that the defendant knowingly and voluntarily entered into [it]."). Based on the evidence currently in the record, we cannot confidently answer this question.

Several circuits have concluded that, in most circumstances, the only way to insure that a waiver of the right to appeal is knowing and voluntary is to require a colloquy between the judge and the defendant expressly addressing the appeal waiver. See Bushert, 997 F.2d at...