U.S. v. Howle

• Decision Date: 05 February 1999
• Docket Number: No. 97-8165,97-8165
• Citation: 166 F.3d 1166
• Parties: -1185, 12 Fla. L. Weekly Fed. C 475 UNITED STATES of America, Plaintiff-Appellee, v. James D. HOWLE, a.k.a. "Rockie", Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1166

166 F.3d 1166

83 A.F.T.R.2d 99-1185, 12 Fla. L. Weekly Fed. C 475

UNITED STATES of America, Plaintiff-Appellee, v. James D. HOWLE, a.k.a. "Rockie", Defendant-Appellant.

No. 97-8165.

United States Court of Appeals Eleventh Circuit.

Feb. 5, 1999.

Robert H. Hishon, Nancy R. Daspit, The Hishon Firm, Atlanta, GA, for Defendant-Appellant.

Amy Levin Weil, Bryan J. Farrell, Charysse L. Alexander, Asst. U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and BARKETT, Circuit Judges, and PROPST ^*, Senior District Judge.

TJOFLAT, Circuit Judge:

This appeal presents an interesting issue regarding the Sentencing Guidelines--one that we do not reach because the defendant waived the right to appeal his sentence. This appeal is therefore dismissed.

I.

James Howle, the defendant, was the president and majority shareholder of Utility Trailer Center, Inc., a Georgia corporation selling new and used semitrailers. Sales of new semitrailers are, under federal law, subject to a twelve percent excise tax. See 26 U.S.C. § 4051(a)(1) (1994). This tax is collected by retailers, who transfer the revenues collected to the Internal Revenue Service on a semimonthly basis. Then, every three months, retailers are required to file a "Quarterly Federal Excise Tax Return" that reports the amount of tax owing to the IRS from sales over the three-month period and the amount actually paid.

As Howle's business began to face financial difficulties in 1990-91, he decided to use a portion of the excise taxes collected to support business operations. Then, when it came time to file the quarterly returns Howle underreported his tax liability such that the amount he claimed to owe corresponded with the amount he actually paid. This scheme continued until May 1991, when the IRS decided to conduct a compliance check for Utility Trailer Center. An IRS agent scheduled a meeting with Howle at which Howle was to produce sales invoices, bookkeeping records, and other financial management data. At the meeting, Howle immediately confessed to his deception, explained his scheme to the agent, and showed her the accounting records that reflected the amounts due to the IRS and the actual amounts paid.

Based on the results of the compliance check, the Government commenced criminal proceedings against Howle, and Howle was indicted on five counts of filing false tax returns under penalty of perjury in violation of 26 U.S.C. § 7206(1). ¹ Howle then entered into a plea agreement with the Government. Under the agreement, the Government promised to dismiss four of the five counts of the indictment, and to recommend that Howle receive a two-level reduction of his offense level pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. In exchange, Howle promised to plead guilty to count two of the indictment and to cooperate with the IRS in filing corrected tax returns. He also waived the right to appeal his sentence ² and the right to attack his conviction in any post-conviction proceeding. After a hearing at which Howle was specifically questioned regarding the waiver of his right to appeal, the plea agreement was accepted by the district court pursuant to Rule 11(e) of the Federal Rules of Criminal Procedure.

Four months after accepting the plea agreement, the district court conducted a sentencing hearing. Under the Sentencing Guidelines in effect at the time of Howle's criminal conduct, his base offense level was 13. See United States Sentencing Commission, Guidelines Manual §§ 2T1.3, 2T4.1 (Nov. 1, 1989). ³ At the sentencing hearing, the district court granted a downward reduction of two points based on Howle's acceptance of responsibility. See U.S.S.G. § 3E1.1(a). Howle then moved for a downward departure on the ground that there were mitigating circumstances in this case of a kind not adequately taken into account by the Sentencing Commission in formulating the Guidelines. See U.S.S.G. § 5K2.0. Specifically, Howle noted that, unlike the ordinary tax fraud defendant, he fully intended to repay the IRS the money he had withheld.

The district court apparently accepted Howle's assertion that he genuinely intended to repay the IRS, and agreed that such intent to repay made Howle's case different from the ordinary tax evasion case. However, it held that intent to repay is not sufficient under the Guidelines to justify a downward departure from the base offense level for making false statements under penalty of perjury.

In denying Howle's motion for a downward departure, the district court made the following statement:

I've tried hard to see if I could say that this was outside the heartland. I can't say that it is.... I will say, however, that I don't think I have the power to depart, and by saying that, that means you are allowed to appeal me. And if the Eleventh Circuit disagrees with me and says that I am wrong, I did have the power to depart, then we can come back. I have already indicated I likely, given the discretion, would probably not do prison in this case. I would probably do no more than halfway house....

....

So, I cannot depart in this case but I invite and welcome an appeal. I will stay the report date so that you can appeal me if you want to....

Neither the Government nor the defendant brought the plea bargain to the court's attention after this statement was made. Following sentencing, Howle filed a timely notice of appeal.

II.

A plea agreement is, in essence, a contract between the Government and a criminal defendant. Among the considerations that a defendant may offer as part of such a contract is waiver of his right to appeal, provided that the waiver is made knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir.1993). In this case, Howle's waiver was clearly knowing and voluntary--he was specifically questioned by the district court regarding the waiver of his right to appeal. See United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir.1997). The plea agreement is therefore enforceable and would appear to bar this appeal.

Howle contends, however, that his waiver was somehow invalidated by the district court's statement (set forth above) in which the court strongly encouraged him to appeal his sentence. In order to assess Howle's claim, we must determine the significance of the district court's statement in relation to the plea agreement. There are three possibilities in this regard: The statement either had no effect on the plea agreement, modified the plea agreement, or eliminated the plea agreement.

The statement is most reasonably interpreted as dicta that had no effect on the court's prior acceptance of the plea agreement. The district court, faced with a difficult legal question and having forgotten the details of the plea agreement, mistakenly told the defendant that he had a right to appeal and encouraged him to do so. It was as if the district court had said that the sky is pink--the fact that it was said by the district court did not make it true. Such dicta, although confusing for the defendant, had no effect on the terms of a previously approved plea agreement. See United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir.1997) (holding that district court's remark at sentencing that "it is your right to appeal from the judgment and sentence within ten days" did not invalidate a previously entered plea agreement in which the defendant had waived his right to appeal).

Alternatively, we could interpret the district court's statement as an attempt to modify the plea agreement by striking the portion of that agreement in which Howle waived his right to appeal. Modification of the terms of a plea agreement is, however, beyond the power of the district court. ⁴ See United States v. Yesil, 991 F.2d 1527, 1531-32 (11th Cir.1992); United States v. Ritsema, 89 F.3d 392, 399 (7th Cir.1996). Such a modification would impermissibly alter the bargain at the heart of the agreement--without the defendant's waiver of his right to appeal, the Government might not have been willing to dismiss four of the five counts contained in the indictment. Having approved the plea agreement, the district court had no more right to change its terms than it would have to change the terms of any other contract. Thus, if the district court's statement was an attempt to modify the plea agreement, it was invalid.

We also note that even if the district court had the authority to modify the plea agreement, its finding that this case presents a difficult legal issue would not be an adequate ground for doing so. A waiver of the right to appeal includes a waiver of the right to appeal difficult or debatable legal issues--indeed, it includes a waiver of the right to appeal blatant error. ⁵ Waiver would be nearly meaningless if it...