U.S. v. Morgan

• Decision Date: 07 October 2004
• Docket Number: No. 03-1316.,03-1316.
• Citation: 386 F.3d 376
• Parties: UNITED STATES of America, Appellee, v. Gordon MORGAN, Defendant-Appellant,
• Court: U.S. Court of Appeals — Second Circuit

Page 376

386 F.3d 376

UNITED STATES of America, Appellee, v. Gordon MORGAN, Defendant-Appellant,

No. 03-1316.

United States Court of Appeals, Second Circuit.

Argued: February 26, 2004.

Decided: October 7, 2004.

Appeal from the United States District Court for the Eastern District of New York, John Gleeson, J Bruce R. Bryan, Syracuse, NY, for Defendant-Appellant.

Carolyn Pokorny, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, and Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, on the brief) for Appellee.

Before: STRAUB, POOLER and B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

Gordon Morgan appeals from a judgment of conviction of the United States District Court for the Eastern District of New York (John Gleeson, Judge). Morgan was convicted, following his plea of guilty, of conspiring to distribute and to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(C), and § 846. The District Court sentenced him principally to a term of 97 months' incarceration, a sentence within the stipulated Guidelines range in his plea agreement.

The plea agreement included standard language waiving the right to appeal such a sentence. Morgan contends that the waiver is unenforceable because it was not knowing and voluntary, and because his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Morgan further contends that the government acted with an unconstitutional motive in declining to move for downward departure under U.S.S.G. § 5K1.1, and that he received ineffective assistance of counsel. Because we conclude that Morgan's waiver was indeed knowing and voluntary, and that he received substantial benefits under the plea agreement, we enforce the waiver and dismiss the appeal with respect to Morgan's claim of an Apprendi violation. We further dismiss Morgan's ineffective assistance of counsel claim, and reject his claim that the government improperly refused to request a downward departure under § 5K1.1.

BACKGROUND

Morgan was charged in a two-count indictment alleging that, between March 2000 and April 2001, he and others, including his wife: 1) conspired to distribute and to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(C), and § 846; and 2) possessed with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C). The indictment did not allege a specific quantity of marijuana.

According to Morgan's Presentence Investigation Report (PSR), Morgan was the leader of a bi-coastal narcotics distribution organization that was responsible for shipping wholesale amounts of marijuana from California to New York City. The PSR detailed the results of an investigation in which law enforcement authorities and UPS officials recovered marijuana shipped by Morgan. The PSR also included statements by Morgan's wife, who later became a fugitive, indicating that Morgan had arranged multiple interstate shipments of multiple packages of marijuana.

In June 2002, Morgan entered into a written agreement with the government to plead guilty to the conspiracy count. Although the agreement did not specify drug quantity, it set forth the statutory maximum and minimum imprisonment terms he faced, as well as the base offense level prescribed by the Guidelines for offenses involving at least 700 kg but less than 1,000 kg of marijuana. See U.S.S.G. § 2D1.1(c)(5). The agreement further explained that Morgan's adjusted offense level of 28 "carries a range of imprisonment of 97 to 121 months, assuming that the defendant falls within Criminal History Category III," and explicitly provided that Morgan "agrees to this Guidelines calculation." The following waiver provision was also included:

The defendant will not (a) challenge the findings contained in the laboratory report or (b) file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence of imprisonment of 121 months or below. This waiver is binding on the defendant even if the Court employs a Guidelines analysis different from that [provided in the agreement].

Prior to sentencing, Morgan informed the District Court that the government would be filing a U.S.S.G. § 5K1.1 motion for a downward departure based on his substantial assistance. The government, however, refused to furnish the letter or to move for the departure. Morgan then sought to compel the motion, citing his cooperation with the government in trying to locate his fugitive wife and asserting that the prosecution had misled him into believing that it would file such a motion. The government responded that no agreement to file a § 5K1.1 motion had been reached and that, in any event, Morgan had repeatedly lied about his wife's whereabouts.

The District Court rejected Morgan's efforts to obtain downward departure and calculated an adjusted offense level of 28, consistent with the terms of the plea agreement. The Court then sentenced Morgan to the bottom of the range stipulated in the agreement, 97 months' incarceration. Morgan appeals his sentence.

DISCUSSION

On appeal, Morgan argues that the waiver provision in his plea agreement is unenforceable because his waiver was neither knowing nor voluntary. Morgan further contends that, even if the waiver was otherwise valid, it is unenforceable because: 1) his sentence was unconstitutional since it violated Apprendi by exceeding the statutory maximum applicable to his offense, 2) the government acted with an unconstitutional motive in refusing to move for downward departure pursuant to U.S.S.G. § 5K1.1, and 3) his trial counsel provided ineffective assistance. For the reasons discussed below, we find Morgan's arguments against enforcement of the waiver to be unpersuasive, and we also decline to consider his ineffective assistance of counsel claim.

I. Knowing and Voluntary Waiver

Morgan claims that the waiver provision is unenforceable because the magistrate judge who conducted the plea proceeding did not explicitly mention the provision during the plea colloquy. See Fed.R.Crim.P. 11(b)(1)(N) (providing that the sentencing court "must inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal"); United States v. Chen, 127 F.3d 286, 290 (2d Cir.1997) (finding that the defendant did not waive his right to appeal, in part, because the magistrate judge failed to "identify the disputed waiver as part of the [Plea] Agreement"). Morgan further contends that the magistrate judge erroneously implied that he retained the right to appeal a sentence below 121 months.¹ In light of these alleged errors, Morgan claims that the record does not clearly demonstrate that he knowingly and voluntarily waived his right to appeal. See United States v. Martinez-Rios, 143 F.3d 662, 668 (2d Cir. 1998) ("[W]e have stated that a waiver of the right to appeal should only be enforced by an appellate court if the record clearly demonstrates that the waiver was both knowing ... and voluntary.") (internal quotation marks omitted).

We find no merit to this contention. The magistrate discussed the waiver and its consequences at length, specifically cautioning Morgan that "[i]f you receive a prison sentence of 121 months or less ... you will have no right to take any appeal from any aspect of this case." Since the magistrate's discussion of the waiver occurred while he was explaining the terms of the plea agreement to Morgan, it was clear from the context that the magistrate was addressing the waiver provision of the plea agreement. Under these circumstances, we see no realistic possibility that Morgan might have misunderstood the nature or source of the waiver and, therefore, conclude that the magistrate properly addressed the waiver provision during the plea colloquy.

We also reject Morgan's assertion that the magistrate judge erroneously implied that Morgan retained the right to appeal a sentence of 121 months or less. A review of the magistrate's full explanation of the waiver demonstrates that it was sufficiently clear:

If you receive a prison sentence of 121 months or less, no matter how Judge Gleeson calculates it, you will have no right to take any appeal from any aspect of this case. Even if your prison sentence exceeds 121 months in length you will have no right to change your mind about pleading guilty. You will have no right to challenge the legality of your conviction or the judgment of guilty. The only rights you would retain, even if your prison sentence is longer than 121 months, is to take an appeal to a higher court and ask it to direct Judge Gleeson to impose a shorter prison sentence. That's the only right you would retain.

If Judge Gleeson decides to impose a sentence below the guideline range and the prosecutor objects to it, the prosecutor could take an appeal to a higher Court and ask the higher Court to direct Judge Gleeson to impose sentence within the guidelines. Do you understand that?

As the transcript shows, the magistrate began his explanation of the waiver by first addressing a scenario in which Morgan received a sentence within the range he bargained for in his plea agreement. The magistrate explicitly informed Morgan that, if he received a sentence of 121 months or less, he would not have the right to appeal. The magistrate then addressed a scenario in which Morgan received a sentence exceeding the 121-month maximum stipulated in the plea agreement. The magistrate properly explained that, even in this circumstance, Morgan could neither change his mind about pleading guilty nor challenge the legality of his conviction. Rather, the only right Morgan retained in the face of a nonconforming sentence was the right to appeal seeking resentencing consistent with the range contemplated by his plea agreement. Viewed in...