U.S. v. Buchanan, 96-2996
| Decision Date | 22 December 1997 |
| Docket Number | No. 96-2996,96-2996 |
| Citation | 131 F.3d 1005 |
| Parties | 11 Fla. L. Weekly Fed. C 912 UNITED STATES of America, Plaintiff-Appellee, v. Ralph James BUCHANAN, a.k.a. Vince Demarco, a.k.a. Daniel Gill, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Talbot M. Smith, Ft. Pierce, FL, for Appellants.
Jack E. Fernandez, Asst. U.S. Atty., Tamra Phipps, Kathy J.M. Peluso, Susan Humes Raab, Peggy Morris Ronda, Asst. U.S. Atty., Jacksonville, FL, for Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT, BIRCH and CARNES, Circuit Judges.
Ralph James Buchanan was convicted, based upon one count of conspiring to possess and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He attempts to appeal his sentence of life imprisonment. The government has filed a motion to dismiss the appeal based upon an appeal waiver contained in the guilty plea agreement. For the reasons that follow, we grant that motion to dismiss.
The parties entered into a written plea agreement which detailed the consideration that each was giving to the other. As part of that plea agreement, Buchanan received from the government the dismissal of Count II of the indictment, the government's promise not to charge him with committing any other federal criminal offenses related to the conduct giving rise to the plea agreement, and its promise to consider making a substantial assistance motion for downward departure pursuant to U.S.S.G. § 5K1.1 or Fed.R.Crim.P. 35(b), if Buchanan cooperated fully with the government and rendered what the government determined to be substantial assistance. For his part, Buchanan agreed to plead guilty to Count I of the indictment, to cooperate with the government, and to waive his right to appeal his sentence.
The part of the plea agreement concerning the appeal waiver stated as follows:
The defendant understands and acknowledges that defendant's sentence will be determined and imposed in conformance with the Comprehensive Crime Control Act of 1984, and the federal sentencing guidelines. Defendant is also aware that a sentence imposed under the sentencing guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum set forth for the offense and pursuant to the sentencing guidelines, and expressly waives the right to appeal defendant's sentence, directly or collaterally, on any ground except for an upward departure by the sentencing judge or a sentence above the statutory maximum or a sentence in violation of the law apart from the sentencing guidelines; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).
Buchanan signed the written plea agreement, and it was made part of the record in the district court.
Before the district court accepted Buchanan's guilty plea, it conducted a Fed.R.Crim.P. 11 colloquy to ensure that the defendant understood the plea agreement and was knowingly and voluntarily pleading guilty. The part of the colloquy concerning the appeal waiver went as follows:
If the Court--if the guidelines are calculated to be at this level, and he goes above that, you have a right under this plea agreement to take an appeal; otherwise you have no right to appeal unless the Government decides for some reason it needs to appeal. And if that happens, then you can also take an appeal.
What this means practically is that if you show up, even if Judge Adams determines the guidelines to be higher than you think they are, his determination counts. And if he sentences you within those guidelines, you are not going to be able to appeal that sentence no matter how much you dislike them; do you understand that?
THE DEFENDANT: Yes, sir. 1
Buchanan through his counsel did make clear during the colloquy that he intended to dispute at sentencing the government's position that pursuant to the cross-reference contained in U.S.S.G. § 2D1.1(d)(1), the court should apply § 2A1.1 (First Degree Murder) which sets the base offense level at 43. Despite the sharp disagreement of the parties on the merits of that issue, there is no indication either in the colloquy or in the plea agreement that the parties agreed the issue would be excepted from the appeal waiver the broad terms of which would cover it.
The district court accepted Buchanan's guilty plea, pronounced him guilty, and after a sentence hearing sentenced him to life imprisonment. The life sentence resulted from the district court's agreement with the government's position, which Buchanan did contest at sentencing, that the § 2D1.1(d)(1) cross-reference to § 2A1.1 applied under the facts of the case.
Notwithstanding the appeal waiver, Buchanan filed a notice of appeal and an appellate brief raising the following three issues, as he phrased them:
Whether the Court erred in not considering nor making a...
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