U.S. v. Bushert

• Decision Date: 04 August 1993
• Docket Number: No. 91-3797,91-3797
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James BUSHERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1343

997 F.2d 1343

UNITED STATES of America, Plaintiff-Appellee, v. James BUSHERT, Defendant-Appellant.

No. 91-3797.

United States Court of Appeals Eleventh Circuit.

Aug. 4, 1993.

Ronald J. Marzullo, St. Petersburg, FL, for defendant-appellant.

Walter E. Furr, Tamra Phipps and David P. Rhodes, Asst. U.S. Attys., Tampa, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and CLARK, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The validity of a waiver of the right to appeal a sentence, included in a plea agreement, is the primary issue in this case. Appellant James Bushert also appeals various other sentencing issues and the denial of his motion to withdraw his guilty plea. The government contends that the appeal as to his sentence should be denied because Bushert's plea agreement included a waiver of his right to appeal his sentence. We hold that sentence appeal waivers, made knowingly and voluntarily, are enforceable. Nevertheless, we consider the merits of the sentencing claims in this case because we conclude that Bushert's waiver was not knowingly and voluntarily made.

I.

One of Bushert's co-defendants, Frederick Albury, headed a cocaine distribution organization in Tampa. Albury was unable to contact his regular supplier of cocaine, Grillo. Knowing that Bushert was familiar with both Grillo and Grillo's source of cocaine, Albury approached Bushert in the hope that Bushert could obtain cocaine for Albury. Although Bushert's attempts to locate cocaine were unsuccessful, Albury was able to get thirty kilograms of cocaine from another source and paid Bushert for his efforts. Bushert knew that most of the cocaine Albury obtained was cooked into crack cocaine.

A grand jury in Florida returned an indictment against Bushert and five co-defendants charging them with conspiracy to possess with intent to distribute cocaine and possession with intent to distribute crack cocaine. The defendants also were charged with operating an establishment used to manufacture crack cocaine. The defendants' motions to suppress evidence that had been obtained through electronic surveillance were denied. At approximately the same time, all defendants entered into plea negotiations with the government. Bushert's co-defendants reached plea agreements with the government that reserved the right to appeal the denial of their motions to suppress. ¹ Bushert's negotiations with the government became protracted, however, because the government believed that Bushert was not being completely truthful.

Eventually, Bushert reached an agreement with the government. That agreement stated that Bushert would plead guilty to Count One of a Superseding Information, charging him with conspiracy to possess with intent to distribute 30 kilograms of cocaine. Bushert agreed to cooperate with the government and the government agreed to "consider" whether such cooperation qualified as substantial assistance under section 5K1.1 of the Sentencing Guidelines. ² The plea agreement stated that the decision as to whether or not the government would file a 5K1.1 motion rested solely with the government. Bushert agreed that "he cannot and will not challenge that decision, whether by appeal, collateral attack or otherwise."

The plea agreement also included a general appeal waiver provision. This provision read that the "[d]efendant knowingly and voluntarily agrees to waive his right to appeal or contest, directly or collaterally, his sentence on any ground, unless the Court should impose a sentence in excess of the statutory maximum or otherwise impose a sentence in violation of law apart from the sentencing guidelines." ³

At Bushert's re-arraignment, the district court conducted a colloquy pursuant to Fed.R.Crim.P. 11. The court told Bushert that it needed to know if he made his plea "freely and voluntarily, without threats, force or promise except the promises contained in the four corners of this plea agreement.... If I ask you any question you don't understand, stop me and I'll explain to you." ⁴ Throughout the colloquy, the court elicited answers from Bushert that he was not under the influence of any drugs, had never been treated for a mental illness, knew where he was and knew to what charge he was pleading guilty. ⁵ Bushert testified that no promises were made to him other than the promises recited in the plea agreement. ⁶ The court informed Bushert of his various rights, including his right to a jury trial and the right against self-incrimination. The court also discussed appeals.

THE COURT: Do you understand that you're losing the right to appeal regarding the charges in this case, however, you do retain the right to question whether you're entering this plea freely and voluntarily, whether the Court has jurisdiction to take your plea. But other than that you're losing your appeal right, do you understand that?

THE DEFENDANT: Yes, Your Honor. ⁷

The court also discussed appeals in the context of the Sentencing Guidelines.

THE COURT: Do you also understand that under some circumstances you or the government may have the right to appeal any sentence that the Court imposes, do you understand that?

THE DEFENDANT: Yes, Your Honor. ⁸

The court then questioned Bushert's attorney concerning various issues. Finally, the court specifically found that Bushert understood what he was doing and that the plea was "not produced by risk, force or promise except those promises dictated into the record in the plea agreement." ⁹ After finding that the plea was entered freely and voluntarily, the court accepted Bushert's guilty plea. ¹⁰

Two months later, Bushert filed a motion to withdraw his plea under Fed.R.Crim.P. 32(d), alleging that the government had promised orally that he would get the "same deal" as his co-defendants. The co-defendants retained the right to appeal the denial of the suppression motion; the plea agreement Bushert signed purports to waive all appellate rights. A magistrate judge reviewed this claim and made several findings of fact. The magistrate found that immediately prior to his re-arraignment, Bushert reviewed his plea agreement but that he did not have time to compare it with his co-defendants' agreements. ¹¹ The magistrate concluded that an evidentiary hearing was not required because Bushert provided no affidavits, ¹² and because at the re-arraignment, Bushert had indicated that there were no promises outside the plea agreement. The magistrate recommended that Bushert's motion to withdraw his guilty plea be denied. Although Bushert contested this report, the district court adopted the magistrate's report and recommendation.

At the sentencing hearing, Bushert's new counsel asserted that the government had acted in bad faith by refusing to file a 5K1.1 substantial assistance departure motion. Although Bushert withdrew his request for an evidentiary hearing on this matter, he notes that he did not waive the bad faith argument. The district court also considered and resolved Bushert's objections to the PSI and heard testimony on the government's proposed obstruction of justice enhancement. The court gave Bushert an obstruction of justice enhancement and an acceptance of responsibility downward departure. The court sentenced Bushert to 151 months of imprisonment, followed by 5 years of supervised release.

II.

A.

Bushert raises six issues on appeal. Before addressing these issues, we first consider the government's claim that Bushert's purported waiver of his right to appeal his sentence ("sentence appeal waiver"), as stated in his plea agreement, prevents him from contesting his sentence. This is an issue of first impression in this circuit.

There is no question that a defendant who enters a guilty plea waives numerous constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Those rights include the right to a jury trial, the right to call witnesses, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination. Id.; see also Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). In fact, guilty pleas have been described as "perhaps the supreme instance of waiver known to our system of justice, one by which all ... trial rights and safeguards are voluntarily foregone." United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979) (en banc). ¹³

Plea bargains serve many significant and valid purposes. For example, they save the government time and money.

[W]hen the state enters a plea bargain with a criminal defendant, it receives immediate and tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources. Also, the defendant's agreement to plead to some crime tends to ensure some satisfaction of the public's interest in the prosecution of crime and confirms that the prosecutor's charges have a basis in fact.

Newton v. Rumery, 480 U.S. 386, 393 n. 3, 107 S.Ct. 1187, 1192 n. 3, 94 L.Ed.2d 405 (1987) (citations omitted). Not only are such bargained guilty pleas and concomitant waivers permissible, the Supreme Court has stated that they are "important components of this country's criminal justice system." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977).

By its terms, the appeal waiver in this case only applied to Bushert's sentence. Accordingly, an appeal going to the heart of the plea--such as the one Bushert makes in his appeal from the denial of his Rule 32(d) motion that his plea was not made voluntarily--would not be affected by the waiver. The waiver of the right to appeal one's sentence implicates a different set of concerns than a plea of guilty, which waives the bundle of constitutional rights discussed above.

There is no constitutional right to appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77...