U.S. v. Lovelace

• Citation: 565 F.3d 1080
• Decision Date: 19 May 2009
• Docket Number: No. 08-2831.,08-2831.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Wayne LOVELACE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

565 F.3d 1080

UNITED STATES of America, Plaintiff-Appellee, v. Richard Wayne LOVELACE, Defendant-Appellant.

No. 08-2831.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2009.

Filed: May 19, 2009.

Richard J. Henderson, AFPD, argued, Fargo, ND, for appellant.

Keith Reisenauer, AUSA, argued, Fargo, ND, for appellee.

Before LOKEN, Chief Judge, and MELLOY and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Richard Wayne Lovelace pled guilty, by a plea agreement, to being a felon in possession of ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). He contends, for the first time on appeal, that the government breached the agreement at sentencing and that the district court relied on an improper sentencing process. The government moved to dismiss this appeal, citing the waiver of appellate rights in the plea agreement. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court denies the government's motion, vacates the judgment, and remands for resentencing before a different district judge.

I.

Police arrested Lovelace, a felon, with seven shotgun shells in his possession and a shotgun nearby. The government charged two counts, one for the ammunition and one for the shotgun. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The parties executed a plea agreement under Fed. R.Crim.P. 11(c)(1)(B), which provides that a sentencing "recommendation or request does not bind the court." Under the agreement, Lovelace pled guilty to the ammunition count, and the government dismissed the shotgun count.

Paragraph 13 of the agreement states: "The parties agree that the base offense level under the Sentencing Guidelines for defendant's conduct is: 20 USSG § 2K2.1(a)(4)(A)." A base offense level of 20 applies if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). The indictment charged one qualifying felony, a 1989 conviction for attempted burglary, a crime of violence.

The Pre-Sentence Report later concluded that Lovelace had two — not one — qualifying felony convictions, and recommended a base offense level of 24. See U.S.S.G. § 2K2.1(a)(2). The second conviction was a controlled substance offense in 2000.

At sentencing, the district court asked the government whether it objected to the PSR's base offense level of 24. The government stated:

No, your honor.

If I could just briefly address the base offense level, which is obviously different than what the plea agreement entailed. I would note that that base offense level within the plea agreement, bates [sic] offense level of 20, included within the contemplated base offense level of 20 based upon the attempted burglary that is set forth in the indictment in count one.

And I, I suppose, can take credit for neglecting to recognize the second conviction from the year 1999 or 2000, which was the delivery of a controlled substance, as it wasn't within the investigative reports that our office had received and obviously it then was not included in the original indictment, so I was not aware of it at the time that we entered into the plea agreement and so that is why it was not included in the contemplated plea agreement that was sent over to Mr. Henderson [defense counsel]. But, in reviewing the presentence investigative report, certainly it should have been included, and I think the court's calculation is correct.

Lovelace did not object to the government's statement. The court adopted a base offense level of 24. With a two-level enhancement for obstruction of justice, the advisory Guidelines range was 110 to 137 months. The court sentenced Lovelace to 120 months' imprisonment, the statutory maximum.

II.

The government moved to dismiss this appeal, citing the waiver of appellate rights in the plea agreement.¹

A.

"As a general rule, a defendant is allowed to waive appellate rights." United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003) (en banc). The court reviews de novo issues related to plea agreements. United States v. Cvijanovich, 556 F.3d 857, 862 (8th Cir.2009). The issue is whether, in the absence of an objection at the district court, this court will enforce a waiver of appellate rights if the government breaches a plea agreement at sentencing.

Several decisions of this court permit appeals, despite waivers, when the government breaches a plea agreement. See United States v. Wilkerson, 179 F.3d 1083, 1084 n. 2 (8th Cir.1999) ("[T]he government concedes that the waiver provision would not bar an appeal if there had been a breach...."); United States v. Johnson, 263 Fed.Appx. 544, 545 (8th Cir.2008) (per curiam) (unpublished) (finding no breach, but stating that "[a]n appeal waiver in a plea agreement does not bar an appeal of a sentence if there is a breach of the agreement."); United States v. Madison, 16 Fed.Appx. 555, 557 (8th Cir.2001) (per curiam) (unpublished) (finding no breach, but stating that "[t]he waiver provision does not bar an appeal of a sentence if there is a breach of the plea agreement ...."), citing Wilkerson, 179 F.3d at 1084 n. 2. These opinions do not state whether the defendant first raised the breach argument below or on appeal. (In Wilkerson, however, the court states that the defendant "asked the [district] court to enforce the plea agreement," suggesting the defendant first raised the breach argument with the district court. See 179 F.3d at 1085.)

On other occasions, this court dismisses appeals, enforcing appellate waivers, when the government allegedly breached the plea agreement, if the defendant did not first raise the breach argument with the district court. See United States v. Fairbanks, 144 F.3d 586, 586 (8th Cir.1998) (per curiam) ("Fairbanks argues that he should not be bound by his promise [not to appeal] because the government breached the plea agreement. Because Fairbanks failed to raise the government's alleged breach at sentencing, we decline to address this argument."); United States v. Wullschleger, 116 F.3d 481, 481 (8th Cir. 1997) (per curiam) (unpublished) ("Wullschleger agreed in his plea agreement ... to waive his right to appeal his sentence. We will not consider Wullschleger's argument that he should not be bound by this promise because the government breached the plea agreement, as he failed to raise the alleged breach at sentencing.") (citations omitted). See also United States v. Cook, 252 Fed.Appx. 114, 115 (8th Cir.2007) (per curiam) (unpublished) (enforcing appeal waiver, despite appellant's argument that the government breached the plea agreement, but stating that "if we considered the merits" of the breach argument, no breach occurred).

Wullschleger, an unpublished decision, is not precedent. 8th Cir. R. 32.1A. Fairbanks "decline[d] to address" whether the government's action, if actually a breach, would release the defendant from the waiver of appellate rights (either because the court implicitly found no breach of the plea agreement, or because the appellate waiver would be enforced even if a breach occurred).

"This panel is bound by Eighth Circuit precedent, and cannot overrule an earlier decision by another panel." Passmore v. Astrue, 533 F.3d 658, 660 (8th Cir.2008) (quotations and citations omitted). "However, when an issue is not squarely addressed in prior case law, we are not bound by precedent through stare decisis." Id. at 660-61, citing Brecht v. Abrahamson, 507 U.S. 619, 630-31, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.").

Since Fairbanks does not squarely address the issue presented here, this court now considers whether, in the absence of an objection at the district court, this court will enforce a waiver of appellate rights if the government breaches a plea agreement at sentencing.

B.

The government asserts that Lovelace's appeal is barred by the appellate waiver, citing United States v. Andis, 333 F.3d 886 (8th Cir.2003) (en banc).² There, the court established a three-part test for determining whether appellate waivers in plea agreements will be enforced.

When reviewing a purported waiver, we must confirm [1] that the appeal falls within the scope of the waiver and [2] that both the waiver and plea agreement were entered into knowingly and voluntarily. Even when these conditions are met, however, [3] we will not enforce a waiver where to do so would result in a miscarriage of justice.

Id. at 889-90 (numbers added).

The Andis test determines whether an otherwise-valid waiver of appellate rights will be enforced. If the government breaches the plea agreement, however, the plea agreement is no longer enforceable as before against the defendant. United States v. Yah, 500 F.3d 698, 704-05 (8th Cir.2007) (when the government breaches a plea agreement, "the defendant is entitled to specific performance and resentencing by a different judge or the opportunity to withdraw his plea"), citing Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). See also United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc) (per curiam) (adopting a modified version of the Andis test); United States v. Yanez-Rodriguez, 555 F.3d 931, 939-40 (10th Cir.2009) (reviewing, outside the modified Andis test, defendant's argument, raised for the first time on appeal, that the appeal waiver is unenforceable because of a government breach of the plea agreement).

The Supreme Court recently held that, when a defendant asserts for the first time on appeal that the government breached a plea agreement, the reviewing court examines the forfeited claim under the plain error test of Fed.R.Crim.P. 52(b). Puckett v. United States, ___ U.S. ____, 129...