U.S. v. Jacobs, 10–20043Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges:
• Citation: 635 F.3d 778
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Marcus Eugene JACOBS, Defendant–Appellant.
• Docket Number: No. 10–20043Summary Calendar.,10–20043Summary Calendar.
• Decision Date: 15 March 2011

635 F.3d 778

UNITED STATES of America, Plaintiff–Appellee,
v.
Marcus Eugene JACOBS, Defendant–Appellant.

No. 10–20043Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 15, 2011.

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Lauretta Drake Bahry, Asst. U.S. Atty., Houston, TX, for Plaintiff–Appellee.

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Thomas B. Dupont, II, Houston, TX, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Texas.Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges:PER CURIAM:

Federal prisoner Marcus Eugene Jacobs pled guilty to one count of possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea agreement, Jacobs generally waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines not requested by the Government. At sentencing, the district court imposed an upward variance from the Guidelines not requested by the Government. Jacobs now contends that the upward-departure exception to the waiver allows him to challenge his sentence on appeal. Because sentencing departures are distinct from sentencing variances, we conclude that the waiver bars this appeal and grant the Government's motion to dismiss.

I.

Jacobs pled guilty to one count of possessing stolen mail in violation of 18 U.S.C. § 1708. In exchange for several concessions from the Government, Jacobs agreed to waive his right to appeal his sentence. In pertinent part, the waiver of appeal provides:

The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only (a) the sentence imposed above the statutory maximum; or (b) an upward departure from the Sentencing Guidelines, which had not been requested by the United States as set forth in Title 18 U.S.C. § 3642(b).

At the Rule 11 hearing, the district court specifically discussed the waiver-of-appeal provision with Jacobs. The court accurately explained that Jacobs was waiving his right to appeal anything about his sentence unless one of the two exceptions applied. The court also explained that Jacobs's sentence had not yet been determined, that the court was not bound by the Government's sentencing recommendation, and that Jacobs would not be able to change his plea even if the court imposed a longer sentence than Jacobs anticipated. Jacobs stated on the record that he had read and understood the terms of his plea agreement, that he wished to give up the rights he was waiving, and that no one had forced or threatened him to plead guilty.

At sentencing, the district court calculated the advisory Guidelines sentencing range as four to ten months. The Government recommended a sentence of seven months. However, the district court opted to vary upwardly under 18 U.S.C. § 3553(a).¹ Citing Jacobs's extensive criminal history, the failure of prior sentences to deter Jacobs from further criminal conduct, a high risk of recidivism, and the need to protect the public, the district court sentenced Jacobs to thirty-six months in prison. On appeal, Jacobs seeks to challenge the reasonableness of a sentence that is 260 percent longer than the high end of the Guidelines range.

II.

We determine de novo whether the waiver-of-appeal provision in Jacobs's

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plea agreement bars this appeal.² A defendant may waive his statutory right to appeal as part of a valid plea agreement, “provided (1) his or her waiver is knowing and voluntary, and (2) the waiver applies to the circumstances at hand, based on the plain language of the agreement.”³

For a waiver of appeal to be knowing and voluntary, “[a] defendant must know that he had a ‘right to appeal his sentence and that he was giving up that right.’ ”⁴ The defendant also must understand the consequences of the waiver.⁵ The defendant's waiver is unknowing and involuntary where the district court explains the terms of the appellate waiver incorrectly⁶ or not at all.⁷ If the district court accurately explains the terms and consequences of the waiver of appeal and the defendant states on the record that he understands them, the defendant's later contention that he did not really understand will not invalidate the waiver. ⁸ Here, Jacobs concedes that he signed the waiver knowingly and voluntarily, and the record of the Rule 11 hearing indicates this concession was a wise one.

To determine whether a waiver of appeal applies to the circumstances at hand, we ascertain the ordinary meaning of the waiver provision.⁹ We do so using “normal principles of contract interpretation,”¹⁰ subject to the limitation that “[g]iven the significance of the rights they involve, we construe appeal waivers narrowly, and against the government.”¹¹ While “any ambiguity must be construed in favor of the defendant's right to appeal,”¹² we will not read ambiguity into an agreement in which none readily manifests itself: “In the absence of evidence that the parties to the agreement intended [ ] a specialized, non-natural definition, we apply the term's usual and ordinary meaning.”¹³

Here, the relevant portion of the waiver-of-appeal provision in Jacobs's plea agreement only allows him to appeal an

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“upward departure” not requested by the Government. “ ‘Departure’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.”¹⁴ The Guidelines set out a three-part framework for the imposition of sentences: the district court (1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole. ¹⁵ The district court's authority to impose a departure emanates from 18 U.S.C. § 3553(b)(1) and, in turn, in Chapter 5, Part K of the Guidelines. ¹⁶ Under Federal Rule of Criminal Procedure 32(h), the district court cannot impose a departure unless it first notifies the parties that it is contemplating doing so.¹⁷ When the district court imposes an upward departure, it must explain its reasons for doing so in Section V of the standard-form Statement of Reasons.

By contrast, if after completing the Guidelines' three-step process the district court “imposes a sentence that is outside the guidelines framework, such a sentence is considered a ‘variance’.”¹⁸ The district court's authority to impose a variance is discretionary and stems from 18 U.S.C. § 3553(a).¹⁹ Rule 32(h)'s notice requirement does not apply to variances.²⁰ And the district court explains its reasons for imposing a variance in Section VI of the Statement of Reasons.

In short, an upward departure and an upward variance are not one and the same. The plea agreement applies only to “departures,” and the term...