U.S. v. Charles

• Decision Date: 09 September 2009
• Docket Number: No. 08-50086.,08-50086.
• Citation: 581 F.3d 927
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deon Andre CHARLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 927

UNITED STATES of America, Plaintiff-Appellee, v. Deon Andre CHARLES, Defendant-Appellant.

No. 08-50086.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 3, 2009.

Filed September 9, 2009.

Benjamin Lee Coleman, Coleman & Balogh LLP, on behalf of defendant-appellant Deon Andre Charles.

E. Martin Estrada, Assistant United States Attorney, on behalf of plaintiff-appellee United States of America.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. 2:07-cr-00614-SJO-1.

Before: WILLIAM C. CANBY, JR., KIM McLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Deon Andre Charles appeals the sentence imposed after he pled guilty, pursuant to a plea agreement, to one count of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In sentencing Charles, the district court applied the career offender enhancement in U.S. Sentencing Guidelines Manual § 4B1.1 ("§ 4B1.1") based, in part, on Charles's prior convictions for violations of California Health and Safety Code § 11351.5 ("§ 11351.5").¹ On appeal, Charles argues that the district court erred by finding that he was a career offender because a violation of § 11351.5 does not categorically constitute a "controlled substance offense" for the purposes of § 4B1.1. Reviewing Charles's sentence for plain error, we conclude that the district court did not plainly err in determining that Charles qualified as a career offender. Accordingly, we affirm Charles's sentence.²

I.

Police officers executed a search warrant at Charles's residence and found 80 grams of cocaine base and a handgun. Charles had previously been convicted of felony offenses, including three convictions under § 11351.5 for possession of a controlled substance for sale and one conviction under California Penal Code § 273.5 for willful infliction of corporal injury. Pursuant to a plea agreement drafted by the government, Charles pled guilty to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and one count of possession of cocaine base with intent to distribute, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii).

Charles's plea agreement stipulated a total offense level of 32. It specifically noted that the stipulated offense level was calculated "absent a determination that the defendant is a career offender" and that Charles understood that his base offense level could be increased if he were found to be a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2 or an armed career criminal under U.S.S.G. § 4B1.4. The plea agreement contained no stipulation as to Charles's criminal history points or criminal history category. Additionally, Charles agreed to waive his right to appeal "any sentence imposed by the district court" provided that (a) the sentence imposed was within the statutory maximum and was constitutional, (b) the district court did not depart upward and it determined the total offense level to be 34 or below, and (c) the district court imposed a sentence within or below the range corresponding to the determined offense level and criminal history category. Notwithstanding these provisions, however, the plea agreement provided that Charles retained his right to appeal the district court's determination of his criminal history category.

In sentencing Charles, the district court found that his adjusted offense level would have been 29 without application of the career offender enhancement. However, the district court found that under § 4B1.1 Charles qualified as a career offender because he was at least eighteen years of age at the time of the instant offense, the instant offense was a felony and a "controlled substance offense," and Charles had "at least two prior predicate felony convictions." Three of his prior convictions were for violations of § 11351.5.³ Although the offense level for a career offender under § 4B1.1 would have been 37 in this case, see U.S.S.G. § 4B1.1(b), the district court calculated an offense level of 34, applying a three-point reduction for acceptance of responsibility. It also found that Charles's criminal history category was VI, as prescribed under the career offender guideline.⁴ Id. ("A career offender's criminal history category in every case under this subsection shall be Category VI.").

At the sentencing hearing, neither Charles nor his counsel objected to the district court's findings or to the facts or specific allegations in the presentence report ("PSR"). Although Charles did not object to the validity of the district court's career offender determination, he did urge the district court to exercise discretion and depart from the offense level of 37 premised on the career offender guideline by application of a "Booker analysis." In essence, Charles contended that the equities of his case supported a departure. Charles also argued that the district court should depart downward from an offense level of 34 because his criminal history was otherwise overstated and the government had not provided sufficient discovery to enable Charles to determine that the probation officer might find him to be a career offender. The district court declined to depart as requested and based Charles's sentence on an offense level of 34 and a criminal history category of VI.⁵ It sentenced Charles to 120 months in prison for the conviction under 18 U.S.C. § 922(g)(1) and 204 months for the conviction under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), to be served concurrently.⁶ Charles timely appeals.

II.

Charles argues that a violation of § 11351.5 does not categorically constitute a "controlled substance offense" for purposes of the career offender enhancement and, therefore, the district court erred in applying § 4B1.1 to determine his sentence. Specifically, he contends that we should consider "widely accepted" common law defenses—here, the entrapment defense—when assessing whether a violation of § 11351.5 is categorically a controlled substance offense. Under this view, Charles maintains that a defendant can be convicted of a drug offense under California law on facts that would not sustain a federal drug conviction because the burdens of proof with respect to the entrapment defense differ under California and federal law.

Before addressing the merits of Charles's appeal, we consider the government's argument that Charles's appeal should be dismissed because of the appeal waiver contained in the plea agreement. We also consider whether Charles's claim on appeal should be reviewed de novo or for plain error.

A.

The government contends that the appeal waiver contained in Charles's plea agreement bars this appeal. Paragraph 22 of the plea agreement provides:

Defendant gives up the right to appeal any sentence imposed by the Court, and the manner in which the sentence is determined, provided that (a) the sentence is within the statutory maximum specified above and is constitutional, (b) the Court in determining the applicable guideline range does not depart upward in offense level or criminal history category and determines that the total offense level is 34 or below, and (c) the Court imposes a sentence within or below the range corresponding to the determined total offense level and criminal history category. ... Notwithstanding the foregoing, defendant retains the ability to appeal the court's determination of defendant's criminal history category and the conditions of supervised release. ...

The government contends that Charles should be bound by the express appeal waiver because his sentence met all of the stated conditions: the sentence was within the statutory maximum, did not constitute an upward departure, had a total offense level of 34, and was within or below the corresponding guideline range. Nevertheless, we conclude that the appeal waiver does not warrant dismissal of Charles's appeal because of an ambiguity contained therein.

We review de novo the validity of an appeal waiver. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.1995). We have stated that "[a] defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made."⁷ United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.2005). "In construing an agreement, [we] must determine what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty." United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (footnote omitted). The drafter of the plea agreement, typically the government, is responsible for any lack of clarity such that ambiguities are construed in favor of the defendant. See, e.g., United States v. Cope, 527 F.3d 944, 950 (9th Cir.2008).

We conclude that Charles did not waive his right to appeal the district court's career offender determination because the appeal waiver is ambiguous as to whether Charles could appeal that determination. There is no doubt that the plea agreement contemplated, and put Charles on notice, that the district court could apply a career offender enhancement, which carries a particular base offense level and criminal history category. See U.S.S.G 4B1.1(b). The agreement also indicated that Charles would give up his right to appeal "any" sentence if the sentence imposed by the district court met certain conditions. At the same time, however, the appeal waiver preserved Charles's right to appeal the district court's criminal history category assessment: "Notwithstanding the foregoing, defendant retains the ability to appeal the court's determination of defendant's criminal history category. ..." The ambiguity arises because the career offender determination necessarily...