U.S. v. Khaton

• Decision Date: 16 November 1994
• Docket Number: No. 94-10001,94-10001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edmond KHATON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 309

40 F.3d 309

UNITED STATES of America, Plaintiff-Appellee, v. Edmond KHATON, Defendant-Appellant.

No. 94-10001.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1994.

Decided Nov. 16, 1994.

V. Roy Lefcourt, San Francisco, CA, for defendant-appellant.

Martha Boersch, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

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

Before: SNEED, PREGERSON, and WIGGINS, Circuit Judges.

SNEED, Circuit Judge:

Edmond Paul Khaton appeals the sentence imposed on him under the Sentencing Guidelines for bank robbery and use of a firearm during a crime of violence. Khaton contends that the district court (1) erroneously concluded that it lacked discretion to depart downward, even though his "career offender" status significantly over-represented his criminal history, and (2) should have granted him a two-point reduction for acceptance of responsibility. We find that Khaton waived his right to appeal the sentence as part of his plea agreement. The appeal is dismissed.

I.

Khaton committed a string of bank robberies in the San Francisco Bay area in December 1992. In four of the five robberies, Khaton was armed with a pistol. State and local police officers apprehended Khaton as he fled from the fifth robbery. A federal grand jury indicted Khaton on five counts of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a) and (d), three counts of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g), and five counts of using a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c).

On February 19, 1993, Khaton briefly escaped custody while federal marshals were escorting him to a court appearance. With the aid of other federal agents, the marshals apprehended Khaton and returned him to custody.

On June 25, 1993, pursuant to a written plea agreement, Khaton pled guilty to four counts of armed bank robbery, one count of unarmed bank robbery, and one count of using a firearm during a crime of violence. In this plea agreement, Khaton waived his right to appeal "any sentence within the discretion of the district judge."

At sentencing, Khaton was classified as a "career offender" on the basis of three prior convictions, two for armed robbery and one for grand theft. The district court also assessed a two-level upward adjustment for obstruction of justice based on his escape.

Khaton moved for a downward departure from the career offender guideline range, contending that this range significantly over-represented his criminal history. Specifically, he argued that he had incurred only the minimum number of convictions necessary to trigger career offender status; that he had been abused as a child; that he was still relatively young when he committed the current and past crimes; and that his efforts to find lawful employment failed because his parole officer repeatedly divulged his parole status to employers. Khaton also asked for a two-point offense reduction for acceptance of responsibility based on his guilty plea and his expressions of remorse.

The government conceded that the district court had discretion to depart from the Sentencing Guidelines, but otherwise opposed Khaton's motions. The district court denied both motions and sentenced Khaton to 262 months' imprisonment, which represents the low end of the relevant career offender guideline range.

II.

The government contends that Khaton waived the right to appeal his sentence. Whether an appellant has waived his statutory right of appeal is an issue of law subject to de novo review. United States v. Bolinger, 940 F.2d 478, 479 (9th Cir.1991).

In his plea agreement, Khaton expressly waived the right to "appeal any sentence within the discretion of the district judge." We believe this is the first case involving this type of...