U.S. v. Murdock

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: Clay
• Citation: U.S. v. Murdock, 398 F.3d 491 (6th Cir. 2005)
• Decision Date: 15 February 2005
• Docket Number: No. 03-1811.,03-1811.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Seth MURDOCK, Defendant-Appellant.

398 F.3d 491

UNITED STATES of America, Plaintiff-Appellee, v. Seth MURDOCK, Defendant-Appellant.

No. 03-1811.

United States Court of Appeals, Sixth Circuit.

Argued: October 26, 2004.

Decided and Filed: February 15, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Carole M. Stanyar, Detroit, Michigan, for Appellant. Lynn A. Helland, Assistant United States Attorney, Detroit, Michigan, for Appellee.

ON BRIEF:

Carole M. Stanyar, Detroit, Michigan, for Appellant. Lynn A. Helland, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: KEITH, CLAY, and BRIGHT, Circuit Judges.^*

CLAY, Circuit Judge.

Defendant, Seth Murdock ("Murdock"), appeals his sentence of twenty-seven months imprisonment, imposed by the district court following his conviction by guilty plea of causing another to possess false documents with intent to defraud the United States in violation of 18 U.S.C. § 1002. The government moves to dismiss the appeal on the basis of an appellate waiver provision in Defendant's plea agreement, and moves to strike Defendant's brief on the ground that it impermissibly refers to documents not submitted to the district court prior to entry of judgment.

For the reasons set forth below, we 1) DENY the government's motion to dismiss the appeal; 2) DENY the government's motion to strike Defendant's brief, but refuse to consider documents not before the district court at the time of judgment; and 3) AFFIRM the sentence imposed by the district court.

BACKGROUND

Procedural History

On October 1, 2002, Murdock was charged in an eleven-count indictment in the United States District Court for the Eastern District of Michigan. Pursuant to an agreement with the government, he pleaded guilty on January 28, 2003, to Count I, causing another to possess false documents with intent to defraud the United States in violation of 18 U.S.C. § 1002. The plea agreement signed by the government and Defendant in this case contained the following waiver of appeal provision:

Defendant's waiver of appeal rights. If the court imposes a sentence equal to or less than the maximum sentence described in ¶ 2 of this agreement ["no more than the lower of a) 27 months of imprisonment, or b) the midpoint of the guideline range that the Court determines to be applicable"], defendant waives any right he may have to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742 to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the sentencing guidelines. (Joint Appendix at 3-6).

During the plea colloquy, the district court did not did not discuss with Murdock the waiver provision of his plea agreement. At the request of the court, the prosecutor summarized the terms of the plea agreement, without mentioning the waiver provision. Following that summary, the court noted that it thought "all the material provisions" had been addressed, and defense counsel agreed.¹ The district court asked Murdock if the prosecutor's summary represented his understanding of the agreement, and Murdock responded that it did. The district court never asked Murdock if he had been given an opportunity to read over the plea agreement and to discuss it with his attorney.

The district court determined that under the Federal Sentencing Guidelines, Murdock's Total Offense Level was 14 and his Criminal History Category was IV, resulting in a guideline imprisonment range of twenty-seven to thirty-three months. The district court imposed a sentence of twenty-seven months on June 12, 2003.

Murdock filed a notice of appeal of his sentence to this Court on June 20, 2003. On October 16, 2003, the government filed a motion to dismiss Murdock's appeal, on the ground that Murdock waived his right to appeal in his plea agreement. The same day, the government also filed a motion to strike Murdock's brief, alleging that it impermissibly referenced documents which Murdock added to the record while the case was on appeal. This Court ordered that both motions be referred to the merits panel.

In a letter brief filed July 21, 2004, Murdock moved to supplement his appeal brief in order to raise an additional issue under Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (June 24, 2004). The government filed a letter brief in reply to Defendant's letter brief on August 2, 2004.

Facts

A brief discussion of Murdock's offense conduct may be helpful in understanding the third issue in this case: whether the district court erred in calculating the amount of loss in this case, and, therefore, Murdock's offense level, for sentencing purposes.

According to the Pre-sentence Investigation Report ("PSR") prepared by the U.S. Probation Office, Murdock's sister, Gloria Pitts ("Pitts"), failed to file tax returns for the years 1993-1996 and owed the Internal Revenue Service ("IRS") approximately $132,000. The IRS placed a levy on her salary from her employer, Wayne State University ("Wayne State"). Shortly thereafter, in December 1998, Murdock sent a forged release of levy to Wayne State, causing the levy to be lifted. A second levy was placed on Pitts' salary in June 1999. At the plea colloquy, Murdock conceded causing a second false release of levy to be sent to Wayne State in August 1999. It was for his conduct in causing the second release of levy to be sent that Murdock was convicted. That release did not result in the levy being lifted.

Again, according to the PSR, in September 1999 Murdock sent a business check to the Boston office of the IRS in the amount of $132,000. The check was drawn on the closed bank account of a trucking company Murdock purchased in 1997, which went bankrupt in 1998. Murdock thereafter phoned the IRS to inquire whether the levy would be lifted based on receipt of the check; the IRS did lift the levy and Pitts received a payroll check on September 15, 1999, in the amount of $2,984.87.

Murdock maintains that the IRS erred in finding Pitts was in arrears, that she did not owe the IRS $132,000 at the time Murdock committed the offense for which he was convicted, and that there was in fact no tax loss in this case. The evidentiary support Murdock offers for these contentions was not provided to the district court before the entry of judgment and sentence and is contested on that basis by the government. See discussion of Issue II, infra, at 11. Murdock further contends that he believed that his sister was due a refund at the time he caused the false release of levy to be sent. In any event, Murdock stipulated to the following facts in the plea agreement:

During 1999 the IRS was in the process of attempting to collect $132,000 in back taxes from Dr. Gloria Pitts. To that end, the IRS placed a levy on the salary of Dr. Pitts in June, 1999. After that date defendant represented Dr. Pitts in her dealings with the IRS. On August 6, 1999, defendant sent a forged release of levy to a payroll specialist at the payroll office of Wayne State University, in Detroit, Michigan for the purpose of allowing Dr. Pitts to obtain the money that had been levied by the IRS. Defendant knew that the release of levy was forged, and sent the release with the intent to defraud the IRS of the amounts it could collect under the levy. (J.A. at 24).

DISCUSSION

I. Whether the waiver of appeal provision of the plea agreement is valid

A. The district court's failure to address the appeal waiver provision of the plea agreement during the plea colloquy

As noted above, the district court never told Murdock that he was waiving his appellate rights, and never ascertained that Murdock understood the appellate waiver provision of his plea agreement. This failure violated Federal Rule of Criminal Procedure 11(b)(1)(N) (enacted as 11(6)(c), effective December 1, 1999), which requires that before a guilty plea is accepted, the "court must inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal...." The Advisory Committee Notes to Rule 11 observe that this provision was incorporated because, in light of the increasing use of appellate waivers, "the Committee believed it was important to insure that first, a complete record exists regarding any waiver provisions, and second, that the waiver was voluntarily and knowingly made by the defendant." Fed. Rule Crim. P. 11 advisory committee's notes. We must decide whether this failure renders the appellate waiver provision of Murdock's plea agreement invalid.

B. Relevant legal standard

"This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo." United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003) (citing United States v. Stubbs, 279 F.3d 402, 411 (6th Cir.2002)).

At oral argument, the government urged us to hold that the Supreme Court's recent decision in United States v. Dominguez Benitez, 542 U.S. ___, 124 S.Ct. 2333, 159 L.Ed.2d 157 (June 14, 2004) requires Murdock to show a reasonable probability that, but for the Rule 11 violation by the district court, he would not have entered a plea of guilty. The Court in Dominguez Benitez held "that a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea." ___ U.S. at ___, 124 S.Ct. at 2340 (emphasis added). We decline to adopt the government's view of this issue, and instead conclude that Dominguez Benitez is inapplicable here because Murdock is not seeking to reverse his conviction, but merely to void the appellate waiver provision in order to challenge his sentence. See United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004) ("Indeed, Arellano does not appeal his conviction. Cf. United States v. Benitez, ___ U.S. ___, 124 S.Ct. 2333, 159 L.E.2d 157 (2004). He only appeals from...