U.S. v. Azure

• Decision Date: 08 July 2009
• Docket Number: No. 08-2453.,08-2453.
• Citation: 571 F.3d 769
• Parties: UNITED STATES of America, Appellee, v. Jason Alan AZURE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

571 F.3d 769

UNITED STATES of America, Appellee, v. Jason Alan AZURE, Appellant.

No. 08-2453.

United States Court of Appeals, Eighth Circuit.

Submitted: December 9, 2008.

Filed: July 8, 2009.

William D. Schmidt, AFPD, argued, Orell D. Schmitz, AFPD, on the brief, Bismarck, ND, for Appellant.

David D. Hagler, AUSA, argued, Bismarck, ND, for Appellee.

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Jason Alan Azure, a member of the Turtle Mountain Chippewa Tribe, pleaded guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. The district court¹ sentenced Azure to 46 months' imprisonment, the bottom of the advisory guideline range. Azure appeals, raising a number of sentencing issues. Because we conclude that he knowingly and voluntarily waived his right to appeal on these grounds, we dismiss the appeal.

On July 11, 2007, Azure assaulted Roxanne Laducer in Laducer's home. During the altercation, Azure bit Laducer above the right eye, removing a portion of skin and tissue, including part of her eyebrow. Azure also bit Laducer's son, James, who had entered the room after seeing Azure and his mother struggling. At the time of the altercation, Azure was under a tribal court protection order mandating that he have no unauthorized contact with Laducer.

A grand jury returned a two-count indictment against Azure, charging him with assault resulting in serious bodily injury and assault with a dangerous weapon, namely, his teeth. On March 18, 2008, pursuant to a plea agreement, Azure pleaded guilty to assault resulting in serious bodily injury. Paragraph 23 of the plea agreement contained an appeal waiver that preserved only Azure's "right to appeal any sentence imposed which is greater than the upper limit of the regularly determined advisory guideline range." The district court discussed the appeal waiver during the change of plea hearing, emphasizing that if Azure was sentenced "within the sentencing guidelines" that were found to apply to him, then he was "giving up" his right to appeal the sentence.

The presentence report recommended an advisory guideline range of 46 to 57 months' imprisonment, corresponding to a total offense level of 22 and a criminal history category of II. The total offense level was derived from a base offense level of 14, USSG § 2A2.2, a five-level increase for causing serious bodily injury, id. § 2A2.2(b)(3)(b), a four-level increase for using a dangerous weapon, id. § 2A2.2(b)(2), a two-level increase for violating a tribal court protection order, id. § 2A2.2(b)(5), and a three-level decrease for acceptance of responsibility. Id. § 3E 1.1(b). Azure objected to the four-level increase, arguing that teeth do not constitute a dangerous weapon.

At the sentencing hearing on June 18, 2008, the district court adopted the guideline computations recommended in the presentence report. Azure urged the court to impose a sentence below the recommended range, and he also sought credit for 90 days that he spent in tribal jail on charges associated with the altercation. The court declined to grant the requested credit, finding that it was unclear whether Azure had served a specific amount of time in tribal jail that was directly related to the same offense for which he was prosecuted in federal court. The court also determined that a term of 46 months' imprisonment was appropriate in light of the factors set forth in 18 U.S.C. § 3553(a).

On appeal, Azure contends that the court committed procedural error by failing to consider Laducer's contributing role in the altercation and by failing to explain adequately its consideration of the sentencing factors enumerated in § 3553(a). He also argues that the sentence is substantively unreasonable, because he should have received credit for the 90 days he spent in tribal jail. The government counters that Azure's appeal should be dismissed based on the waiver of appellate rights contained in the plea agreement. Alternatively, the government argues that the sentence should be affirmed on the merits.

A defendant may waive his right to appeal. We will generally enforce such a waiver as long as the appeal falls within the scope of the waiver, and the defendant's accession to the plea agreement and the waiver was knowing and voluntary. United States v. McIntosh, 492 F.3d 956, 959 (8th Cir.2007). Our court recognizes a narrow exception to the enforcement of waivers when enforcement would result in "a miscarriage of justice." United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003) (en banc). The government bears the burden of establishing that the plea agreement clearly and unambiguously waives the defendant's right to appeal, and ambiguities in the agreement are construed against the government. Id. We review de novo whether a defendant waived the right to appeal a sentence. United States v. Michelsen, 141 F.3d 867, 871 (8th Cir. 1998).

The waiver in Azure's plea agreement states, in relevant part:

Defendant also waives any right to appeal the sentence under Title 18, United States Code, § 3742(a), as recognized and permitted by United States v. Andis, 332[sic] F.3d 886 (8th Cir.2003). Expressly excluded from the waiver of appeal is Defendant's right to appeal any sentence imposed which is greater than the regularly determined advisory guideline range.

(Am. Plea Agreement ¶ 23, R. Doc. 20, at 8-9) (emphasis added).

The government observes that the district court determined an advisory guideline range of 46 to 57 months' imprisonment, and sentenced Azure within that range. It argues, therefore, that Azure was sentenced within the "regularly determined advisory guideline range," and that he waived the right to appeal his sentence. Azure counters that the phrase "regularly determined advisory guideline range" in the exclusion from the waiver is ambiguous, because it fails to specify who decides the guideline range and at what point in the sentencing process the range is to be determined. On this basis, Azure contends that the waiver is unenforceable. We conclude that the government has the better argument in this case.

The term "guideline range" is a familiar term of art in the advisory guideline system. The application instructions in the United States Sentencing Commission Guidelines Manual direct the district court to determine an offense level and criminal history category for each defendant, and then to determine the guideline range that corresponds to the offense level and criminal history category. USSG § 1B1.1(g); see id. Ch. 5, Pt. A (Sentencing Table). For each pairing of an offense level and criminal history category, the sentencing table in Chapter 5 sets forth a range of imprisonment known as the guideline range. Part K of Chapter 5 then provides that the court "may depart from the applicable guideline range" in certain circumstances. Id. § 5K2.0(a)(1). After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court also may impose a sentence outside the guideline range based on its application of 18 U.S.C. § 3553(a).

In this case, the district court followed the procedure set forth in the application instructions, calculated a total offense level of 22 and a criminal history category II, and determined a guideline range of 46 to 57 months' imprisonment. The court then sentenced Azure to 46 months' imprisonment. Thus, if the guideline range determined by the court pursuant to USSG § 1B1.1(g) is the "regularly determined guideline range," then Azure has waived his right to appeal the sentence, because his sentence was not "greater than the regularly determined advisory guideline range."

Azure argues that the waiver should not be enforced because the phrase "regularly determined advisory guideline range" is unclear about who is to determine the range, and about when the range is to be determined. He suggests that the agreement could refer to the advisory guideline range determined by the prosecution or the probation office, rather than by the district court. He says that the agreement could refer to the guideline range determined before the application of any offense level enhancements, or to the range determined after any enhancements but before any departures deemed appropriate by the district court. Azure relies on United States v. Kemp, 530 F.3d 719 (8th Cir.2008), where this court held that the phrase "advisory guideline range established by the Court for the offense" was unclear, because it could refer either to the guideline range determined based on the defendant's offense level and criminal history category without any departures, or to a range calculated by the sentencing court after an upward departure. Id. at 723; see also United States v. Azure, 536 F.3d 922, 929 (8th Cir.2008).

We are not convinced that there is any material ambiguity in the written plea agreement that permits Azure to avoid the waiver. The natural reading of the agreement is that the "regularly determined advisory guideline range" is the guideline range determined by the district court. The prosecution may advocate for a particular guideline range, and the probation office may recommend a guideline range, but the responsibility to determine the advisory range rests with the sentencing court. USSG § 1B1.1(g); see Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In any event, any ambiguity in the agreement about which of the three actors is meant to identify the "regularly determined advisory guideline range" is immaterial in this case. The guideline...