U.S. v. Hicks

• Decision Date: 27 October 1997
• Docket Number: No. 96-3591,96-3591
• Citation: 129 F.3d 376
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William H. HICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 376

129 F.3d 376

UNITED STATES of America, Plaintiff-Appellee, v. William H. HICKS, Defendant-Appellant.

No. 96-3591.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1997.

Decided Oct. 27, 1997. ^*

Thomas Edward Leggans (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Phillip J. Kavanaugh (argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before BAUER, CUDAHY, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

William H. Hicks alleges a host of sentencing misdeeds on appeal. However, before we can entertain these allegations, we must first examine Hick's plea agreement, in which Hicks agreed to waive his right to appeal.

On July 21, 1994, a federal grand jury returned a forty-two count superseding indictment against Hicks, charging him with numerous counts of money laundering, mail fraud, and wire fraud. On March 1, 1996, pursuant to a written plea agreement, Hicks pleaded guilty to Count Fifteen, which charged him with wire fraud, in violation of 18 U.S.C. §§ 1342 and 1343. Hicks also agreed to waive his right to appeal. In exchange, the government agreed to dismiss the remaining counts, to recommend a sentence at the low end of the applicable guideline range, and to recommend a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.

On May 7, 1996, a Presentence Report ("PSR") was filed. Hicks filed objections to the PSR on October 1, 1996. On October 2, 1996, the government filed a response to Hicks' objections. Included in that response was grand jury testimony. At the sentencing hearing on October 4, 1996, Hicks' counsel stated that he had not seen the grand jury materials, but the court proceeded without his objection.

The court sentenced Hicks to sixty months imprisonment, three years of supervised release, and a $10,000 fine. In so doing, the district court relied upon the PSR findings, including the portions to which Hicks' counsel objected. Claiming that Hicks' post-plea conduct did not evidence an acceptance of responsibility, the government recommended only a two-level reduction, not the three-level reduction promised in the plea agreement. Hicks did not move to withdraw his guilty plea. Finding that Hicks was a "leader" or "organizer" as defined in U.S.S.G. § 3B1.1, the district court also enhanced his sentence. Finally, the court denied Hicks' motion for a downward departure.

Hicks appeals, arguing primarily that the government breached the plea agreement by only recommending a two-level reduction for acceptance of responsibility. He also contends that the district court erred at sentencing when: (1) it relied upon an ex parte communication; (2) it failed to state reasons for its resolution of disputed factual issues; (3) it enhanced Hicks' offense level after determining that he was a leader in the offense; and (4) it refused Hicks' request for a downward departure. The government believes that Hicks waived his right to appeal in his plea agreement. It also contends that it did not breach the plea agreement and that, in any event, Hicks waived the issue by not raising it at sentencing.

As a threshold matter, we must decide whether we can hear Hicks' appeal at all. We will enforce a plea agreement in which the defendant agrees to waive appeal, provided the waiver is knowing and voluntary. See United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2467, 138 L.Ed.2d 223 (1997); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir.1995). However, we will not enforce the waiver if the district judge relied on impermissible facts in sentencing (for example, the defendant's race or gender) or if the judge sentenced the defendant in excess of the statutory maximum sentence for the offense(s) committed. Feichtinger, 105 F.3d at 1190.

In this case, the plea agreement provided in relevant part:

The Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the Defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that Sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255.

(emphasis added). Hicks does not argue that he entered into the plea agreement either in ignorance or under duress. He also does not argue that the district court considered impermissible factors in sentencing him or that the court sentenced him in excess of the statutory maximum. Rather, Hicks believes that he can still bring this appeal and that he is entitled to specific performance of the plea agreement because the government breached the plea agreement when it recommended only a two-level reduction for acceptance of responsibility. Specifically, the plea agreement provided:

Defendant and the Government agree that Defendant has voluntarily demonstrated a recognition and affirmative acceptance of personal responsibility for this criminal conduct, and the Government will recommend a reduction of 3 levels, reducing the Offense Level to 25 (from Offense Level 28). See [sic] U.S.S.G. § 3E1.1.

However, Hicks did not bring this breach to the district court's attention at sentencing, where the district court could have remedied the situation. ¹ A defendant's failure to allege the breach of a plea agreement at sentencing waives the matter for appeal. United States v. Walton, 36 F.3d 32, 36 (7th Cir.1994) (citing United States v. Pryor, 957 F.2d 478, 481-82 (7th Cir.1992)); see also United States v. Flores-Sandoval, 94 F.3d 346, 352 (7th Cir.1996) ("Breach of a plea agreement cannot be raised for the first time on direct appeal.") (citing United States v. D'Iguillont, 979 F.2d 612, 614 (7th Cir.1992), cert. denied, 507 U.S. 1040, 113 S.Ct. 1873, 123 L.Ed.2d 492 (1993)). Because Hicks brings the breach issue for the first time on direct appeal, he has waived it.

We will, however, reverse even on a relinquished ground if the district court committed plain error. United States v. Phillips, 37 F.3d 1210, 1215 (7th Cir.1994). We have stated that "[a] reversal on the basis of plain error can be justified only when the reviewing court is convinced that it is necessary in order to avert an actual miscarriage of justice." D'Iguillont, 979 F.2d at 614 (citation omitted). That is, to establish plain error, Hicks "must show that but for the breach of the plea agreement his sentence would have been different." D'Iguillont, 979 F.2d at 614 (citation omitted). We would engage in a plain error analysis except for another wrinkle--Hicks not only waited until appeal to bring a charge that the government breached the plea agreement, he also signed a plea agreement which included a waiver of his right to appeal his sentence on any grounds (if that sentence is within the maximum guideline range). As far as we can tell, there is no case from this Circuit in which both of these waiver issues are simultaneously implicated.

The Ninth Circuit, however, has addressed both issues at the same time. In United States v. Gonzalez, 16 F.3d 985, 987 (9th Cir.1993), ² the government and Gonzalez entered into a plea agreement in which Gonzalez agreed to waive his right to appeal and the government agreed to ask for a two-level departure for acceptance of responsibility. Id. In the PSR, the probation officer found that Gonzalez had in fact shown remorse, and he recommended a downward adjustment for acceptance of responsibility. The government objected. At sentencing, the probation officer informed the court of the disagreement. Id. The district court gave a tentative ruling in favor of the adjustment, but then asked if the government had anything to say. Id. The government responded by opposing the two-level adjustment. The district court ultimately denied the reduction for acceptance of responsibility. Id.

Gonzalez appealed, contending that the government breached his plea agreement by opposing a two-level reduction in sentencing for acceptance of responsibility. 981 F.2d 1037, 1038 (9th Cir.1992). The government filed a motion to dismiss the appeal, arguing that Gonzalez had waived his right to appeal under the plea agreement. Id. The court found that Gonzalez's contention called into question the validity of his waiver. Id. It denied the government's motion and concluded that the issue should be resolved by a merits panel, along with any other issues that the merits panel determines are properly before it. Id.

In United States v. Gonzalez, 16 F.3d 985, 989 (9th Cir.1993), a merits panel characterized the nature of Gonzalez's appeal. The court determined that Gonzalez was not appealing the government's breach of the plea agreement. Id. The court found that Gonzalez was instead arguing that the government's breach of the plea agreement released him from his obligation not to appeal his sentence. Id. The court concluded that Gonzalez's argument was that he was entitled to a reduction for acceptance of responsibility because he had expressed remorse for his crime, not because the government breached the plea agreement at sentencing when it stated that Gonzalez was not entitled to the reduction. Id.

The court acknowledged that Gonzalez's failure to raise the breach issue in the district court typically would have prevented him from arguing on appeal that he was entitled to a remedy for the breach, such as specific performance. Id. But the court found:

Gonzalez's inaction, however, has no bearing on whether...