U.S. v. Goodson

• Decision Date: 16 October 2008
• Docket Number: No. 06-4895.,No. 06-4896.,06-4895.,06-4896.
• Citation: 544 F.3d 529
• Parties: UNITED STATES of America v. Daniel J. GOODSON, III, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

544 F.3d 529

UNITED STATES of America v. Daniel J. GOODSON, III, Appellant.

No. 06-4895.

No. 06-4896.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 1, 2008.

Filed: October 16, 2008.

Karen S. Gerlach, Renee Pietropaolo, Office of Federal Public Defender, Pittsburgh, PA, Counsel for Appellant.

Robert L. Eberhardt, Laura S. Irwin, Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Before: RENDELL, SMITH, and FISHER, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Daniel J. Goodson appeals from the sentence imposed by the United States District Court for the Western District of Pennsylvania, challenging a condition of supervised release requiring Goodson to consent to a search of his place of business. The government asserts that we are precluded from reviewing this issue because Goodson, pursuant to a plea agreement, waived his right to file a direct appeal under 18 U.S.C. § 3742(a). In his reply brief, Goodson acknowledges for the first time the existence of an appellate waiver. He contends, however, that the waiver does not preclude this particular appeal and that, in any event, the waiver is invalid because it was unknowing and involuntary.

We must determine whether Goodson's failure to address the applicability of the appellate waiver in his opening brief effectively foreclosed him from subsequently challenging in his reply brief the enforceability of the appellate waiver. We hold that it does not. Nonetheless, we will enforce the appellate waiver and will affirm the judgment of the District Court.

I.

On June 23, 2005, a grand jury returned an indictment (District Court No. 05-CR-179), charging Goodson with three counts of intending to defraud and to use an unauthorized access device in violation of 18 U.S.C. § 1029(a)(2), and one count of wire fraud in violation of 18 U.S.C. § 1343. Thereafter, the government and Goodson entered into a plea agreement. Goodson agreed, inter alia, to: (1) plead guilty to count four of the 2005 indictment, charging him with wire fraud in violation of 18 U.S.C. § 1343; (2) waive his right to be indicted and to plead guilty to counts one and two of an information (District Court No. 06-CR-231), charging him with making and uttering counterfeit checks in violation of 18 U.S.C. § 513; and (3) "waive[ ] the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742," subject to certain exceptions.

The appellate waiver provision of the plea agreement states:

9. Daniel J. Goodson, III waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, Daniel J. Goodson, III may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Daniel J. Goodson, III may take a direct appeal from the sentence.

The foregoing reservations of the right to appeal on the basis of specified issues do not include the right to raise issues other than those specified. Daniel J. Goodson, III further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence.

The maximum penalties involved were set forth in the agreement, including the maximum term of supervised release of three years. On the last page of the plea agreement was an acknowledgment by Goodson that he had read the agreement, discussed it with his counsel, and accepted that it fully set forth the terms of his agreement with the government. Goodson signed this acknowledgment, and his counsel witnessed his signature.

The following day, during the change of plea hearing, the District Judge conducted a plea colloquy, during which Goodson affirmed that he was 31 years of age, had a college degree, and understood the English language. The Court reviewed the various rights that Goodson was giving up by pleading guilty. She also reviewed what the government was required by law to prove if Goodson went to trial. In explaining the maximum penalties Goodson faced if convicted, the Court addressed not only the maximum term of imprisonment, but also the fine, the term of supervised release, the mandatory special assessment, and restitution. The Court noted the existence of the plea agreement and requested that the prosecutor review the substance of the agreement on the record. In describing the waiver, the prosecutor stated:

There is a waiver provision in the plea agreement that deals with him waiving his right to take a direct appeal from his conviction. There are certain exceptions that are specified in the agreement which would permit him to take an appeal under those circumstances. He also agrees to the waiver of his right to file a 28 U.S.C. § 2255 motion.

At the conclusion of the prosecutor's statement, the District Judge asked Goodson if he had heard the prosecutor's recitation. Goodson affirmed that he had. The Court then asked if Goodson understood what the prosecutor had said. Goodson again replied in the affirmative. Later during the proceeding, this exchange took place:

Court: Do you understand that under certain circumstances, this relates to what you have given up in the plea agreement, you or the government may have the right to appeal any sentence that I impose?

Defendant: Yes, Your Honor.

Court: But do you understand that you have given up substantial appellate rights in the plea agreement?

Defendant: Yes, Your Honor.

Thereafter, Goodson pleaded guilty to the wire fraud count in the indictment, and the two counts of making and uttering a counterfeit security. The Court found that Goodson's pleas were knowing and voluntary, and accepted them.

Subsequently, the District Court sentenced Goodson on both the 2005 and the 2006 criminal actions to concurrent terms of 27 months of imprisonment, which were to run concurrently, in part, with sentences previously imposed by the Allegheny County Court of Common Pleas. In addition, the Court imposed a three year period of supervised release, including as a condition of supervised release that Goodson maintain gainful employment and that Goodson "shall consent to the United States Probation Office conducting periodic unannounced examinations of his computer system(s)" and that he "shall submit to [sic] his person, residence, place of business, computer, and/or vehicle to a warrantless search conducted and controlled by the United States Probation Office at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release."

At the conclusion of the sentencing hearing, the District Court advised that Goodson had the right to appeal his sentence within ten days. On the heels of this statement, the prosecutor reminded the Court that Goodson "waived his right to appeal in this case" with certain exceptions enumerated therein. In response, the Court clarified that "whatever is not covered by the waiver in the plea agreement, you have a right to appeal on." Id.

Goodson filed a timely appeal from the sentences imposed in both the 2005 and the 2006 criminal actions. The government did not file a motion to dismiss the appeal through enforcement of the appellate waiver. Instead, the parties complied with the briefing schedule issued by this Court. Goodson asserted in his appellate brief that the condition of supervised release requiring that he consent to a warrantless search of his "place of business" was "so broad it is beyond the court's power to order and the defendant's power to obey."

The government then raised the appellate waiver issue for the first time, arguing that Goodson had knowingly waived his right to challenge this portion of his sentence.¹ The government cited Goodson's failure either to mention the appellate waiver in his initial brief or to explain why the issue he was raising was not encompassed by the waiver. In addition, the government addressed the merits of Goodson's challenge to the condition of supervised release requiring that he consent to a search of his business.

Goodson filed a reply brief. In it, he argued that the appellate waiver did not clearly and unambiguously preclude a challenge to the conditions of supervised release, and he asserted that the burden was on the government to demonstrate that the waiver extended to the question in this appeal, i.e., "whether the term `sentence' clearly and unambiguously includes any and all conditions of supervised release, particularly those not suggested by the statute." According to Goodson, "sentence" means only the term of incarceration. Moreover, Goodson argued in his reply brief that his waiver was neither knowing nor voluntary because the District Court failed to conduct an adequate colloquy under Federal Rule of Criminal Procedure 11(b)(1)(N).

II.

The District Court exercised jurisdiction under 18 U.S.C. § 3231. In United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007), we declared that we have "subject matter jurisdiction over the appeal by a defendant who had signed an appellate waiver." Our jurisdiction arises under 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006).

III.

In United States v. Khattak, 273 F.3d 557 (3d Cir.2001), we held that "waivers of appeals are generally permissible if entered into knowingly and voluntarily, unless they work a miscarriage of justice." Id. at 558. After concluding that Khattak's waiver was enforceable, we declared that we lacked jurisdiction to consider the merits of his appeal. Id. at 563. Because we tied the validity of an appellate waiver to...