U.S. v. Khattak

• Decision Date: 06 December 2001
• Docket Number: No. 00-4169,00-4169
• Citation: 273 F.3d 557
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, v. GUL KHAN KHATTAK, APPELLANT
• Court: U.S. Court of Appeals — Third Circuit

Page 557

273 F.3d 557 (3rd Cir. 2001)

UNITED STATES OF AMERICA, v. GUL KHAN KHATTAK, APPELLANT

No. 00-4169

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued July 20, 2001

Filed December 6, 2001

On Appeal from the United States District Court for the District of New Jersey D.C. Criminal No. 94-cr-00472 (Honorable Joseph E. Irenas) Lori M. Koch, Esquire (argued), Office of Federal Public Defender, 800 Hudson Square, Suite 350 Camden, New Jersey 08102, for Appellant.

George S. Leone, Esquire (argued), Office of United States Attorney, 970 Broad Street, Room 700 Newark, New Jersey 07102, for Appellee.

Before: Scirica, Rendell and Rosenn, Circuit Judges

OPINION OF THE COURT

Scirica, Circuit Judge.

This case addresses the validity of a "waiver of appeal" provision in a guilty-plea agreement, an issue of first impression in our court. Ten other Courts of Appeals have held that such waivers are generally valid. We hold that waivers of appeals are generally permissible if entered into knowingly and voluntarily, unless they work a miscarriage of justice.

I.

On September 13, 1994, defendant Gul Khan Khattak, a resident of Pakistan, was charged with conspiring to possess with intent to distribute and to import eight kilograms of heroin from Pakistan into the United States. On April 30, 1999, Khattak was arrested and extradited to the United States.¹ In a proposed plea agreement, the government agreed: 1) to accept Khattak's guilty plea to the conspiracy to import heroin charge; 2) to dismiss the conspiracy with intent to distribute charge; 3) to bring no further charges against Khattak related to past heroin or hashish transactions; 4) to aid Khattak's efforts to be exempted from the ten-year mandatory minimum for conspiracy to import heroin by stipulating to four of the five elements needed to qualify for the "safety valve" under 18 U.S.C. S 3553(f) and U.S.S.G. S 5C1.2; 5) to stipulate to Khattak's eligibility for a two-level reduction for acceptance of personal responsibility under U.S.S.G. S 3E1.1(a); and 6) to agree that Khattak had "timely notified authorities" of his intention to plead guilty, qualifying for an additional one-level reduction under U.S.S.G. S 3E1.1(b)(2).

The government also stipulated that the applicable sentencing guideline for violating 21 U.S.C. S 963 was U.S.S.G. S 2D1.1 and that the amount of heroin was "less than ten kilograms," resulting in a base offense level of 34. With three levels of reduction, the government agreed the total offense level was 31. The government also waived its right to appeal the judicial determination of the offense level if it exceeded level 31.²

In exchange, Khattak agreed: 1) to plead guilty to conspiracy to import heroin; 2) to stipulate he intended to import eight kilograms of heroin, rendering appropriate a base level of 34 (the weight was at least three kilograms, but less than ten); 3) to stipulate the total offense level should be no greater than 31; and 4) to waive his right to appeal the determination of the offense level. Significantly for our purposes, the plea agreement also provided:

Gul Khan Khattak knows that he has, and voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion after sentencing--including, but not limited to, an appeal under 18 U.S.C. S 3742 or a motion under 28 U.S.C. S 2255 -- that challenges the sentencing court's determination or imposition of the offense level, if the total offense level determined by the court is equal to or less than the stipulated offense level....

(Supplemental Appendix at 8.) Both the government and Khattak retained the right to seek additional adjustments or departures. The plea agreement provided that"[t]o the extent that the parties do not stipulate, each reserves the right to argue the effect of any fact upon sentencing." (Id. at 3-4.) In this regard, Khattak clarified his desire to pursue a minor-role adjustment, to which the government would not agree.

Khattak signed the plea agreement in the presence of the District Court.³ Acknowledging the agreement had been translated, Khattak testified, "I offer my plea of guilty freely and voluntarily of my own accord with full understanding of all matters set forth in the... Indictment[and] in this application." (Id. at 3-4.) The District Court then conducted an extensive Rule 11 colloquy, with the help of a translator.

The District Court specifically questioned Khattak's understanding of his waiver of appeal and its effect on his desire for a minor-role adjustment. The Court asked, "Do you understand that so long as I sentence you based on an Offense [Level] of 31 or less, you will not be able to appeal my sentence, and will not be able to challenge the sentence in later proceedings that might otherwise be permitted under law?" Khattak replied, "Yes, I understand." The Court then explained, "The result of that, I want to also make clear that even if I deny your minor role adjustment, you will not be able to appeal that decision because it's still a 31, if everything else is followed, you will not be able to appeal my decision on this point?" Again, Khattak replied, "Yes, I understand." (Appendix at 47.)

The District Court denied the minor-role adjustment sought by Khattak, but fixed the offense level at 29, which carried a range of 87 to 107 months' imprisonment.⁴ The District Court then departed downward to 84 months, based on the harsh conditions in the Pakistani jail where Khattak had been detained prior to extradition. Despite his waiver, Khattak filed a notice of appeal.

II.

Khattak does not claim he misunderstood his waiver. Nor does he challenge the language of his plea agreement, plainly waiving his ability to appeal. But Khattak contends that waiver-of-appeals provisions are void as contrary to public policy, because defendants cannot ever knowingly and voluntarily waive their rights to appeal future errors. Khattak asks us to void the waiver-of-appeals provision of his plea agreement and reach the merits of his appeal (the denial of a minor-role adjustment), or in the alternative, vacate his guilty plea. We examine the legality of waiver-of-appeals provisions de novo, as it is a question of law. United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000). We do not address the merits of Khattak's appeal.

III.

As noted, ten other Courts of Appeals have found waivers of appeals generally permissible and enforceable. United States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001); United States v. Fisher, 232 F.3d 301, 303 (2d Cir. 2000); United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000); United States v. Branam, 231 F.3d 931, 932 (5th Cir. 2000); United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir. 2000); United States v Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000); United States v. Nguyen, 235 F.3d 1179, 1184 (9th Cir. 2000); United States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000); United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir. 1999). Each case follows a similar line of reasoning.

As the Supreme Court has stated, "A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution." United States v. Mezzanatto, 513 U.S. 196, 201 (1995); see also Peretz v. United States, 501 U.S. 923, 936 (1991) ("The most basic rights of criminal defendants are... subject to waiver."). In every plea agreement, the defendant waives the right to a jury trial, the right to confront and cross-examine witnesses, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969). In addition, a defendant can waive his rights against double jeopardy and his Sixth Amendment right to counsel. Ricketts v. Adamson, 483 U.S. 1, 10 (1987) (double jeopardy); Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (right to counsel).

The United States Constitution does not guarantee a right to appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). The right to appeal a criminal conviction is created by statute. See 18 U.S.C. S 3742. The ability to waive statutory rights, like those provided in 18 U.S.C. S 3742, logically flows from the ability to waive constitutional rights. Teeter, 257 F.3d at 22; see also Shutte v. Thompson, 82 U.S. (15 Wall.) 151 (1873) ("A party may waive any provision, either of a contract or of a statute, intended for his benefit."). If done knowingly and voluntarily, a statutorily created right to appeal is generally held to be waiveable. Nguyen, 235 F.3d at 1182 (noting " `the sole test of a waiver's validity is whether it was made knowingly and voluntarily' ") (quoting Anglin, 215 F.3d at 1068). We agree.

Khattak's arguments have been rejected by each appellate court to consider them. Waivers of the legal consequences of unknown future events are commonplace. A defendant waiving a right to trial by jury, for example, waives a procedural protection that might result in a favorable verdict. But the "prospective nature" of waivers has "never been thought to place [waivers] off limits or to render a defendant's act `unknowing.' " Teeter, 257 F.3d at 21. These waivers "preserve the finality of judgments and sentences imposed pursuant to valid pleas of guilty." United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992). Allowing defendants to retract waivers would prolong litigation, affording defendants the benefits of their agreements while shielding them from their self-imposed burdens.

Khattak relies on United States v. Raynor, 989 F.Supp. 43, 44 (D.D.C. 1997),⁵ where the trial court determined a defendant could not knowingly or intelligently waive the right to challenge a yet-imposed sentence, as that might result in an "illegal, unconstitutional or otherwise improper" sentence. Id. But by waiving the right to appeal, a defendant necessarily waives the opportunity to challenge the sentence imposed, regardless of the merits. As...