U.S. v. Novosel

• Decision Date: 12 April 2007
• Docket Number: No. 06-3251.,06-3251.
• Citation: 481 F.3d 1288
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory A. NOVOSEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

481 F.3d 1288

UNITED STATES of America, Plaintiff-Appellee, v. Gregory A. NOVOSEL, Defendant-Appellant.

No. 06-3251.

United States Court of Appeals, Tenth Circuit.

April 12, 2007.

Submitted on the motion:^*

Elizabeth C. Burke, Shook, Hardy & Bacon L.L.P., Kansas City, MO, for Defendant-Appellant.

Eric F. Melgren, United States Attorney, Marietta Parker, Assistant United States Attorney, Kansas City, KS, for Plaintiff-Appellee.

Before KELLY, O'BRIEN, and McCONNELL, Circuit Judges.

PER CURIAM.

Defendant Gregory A. Novosel pled guilty to one count of conspiracy to manufacture and possess more than 100 marijuana plants in violation of 21 U.S.C. §§ 841 and 846, and one count of aiding and abetting the use of a firearm during and in relation to and in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924. He did so pursuant to a plea agreement that included a waiver of his right to appeal. Novosel filed a notice of appeal and the government has now moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). We grant the motion and dismiss the appeal.

Under the terms of the plea agreement accepted by the district court, Novosel "knowingly and voluntary waive[d] any right to appeal or collaterally attack any matter in connection with [his] prosecution, conviction or sentence." Plea Agreement at 7 (filed Oct. 18, 2005). More specifically, he waived "any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court." Id. The district court sentenced Novosel to sixty months' imprisonment on each count, to be served consecutively. This sentence was at the statutory mandatory minimum of not less than five years' imprisonment for each count. Novosel states in his docketing statement that he seeks to raise on appeal three ineffective assistance of counsel claims, two claims of sentencing error, and a claim that he did not knowingly and voluntarily enter into the plea agreement.

In Hahn, this court held that a waiver of appellate rights will be enforced if (1) "the disputed appeal falls within the scope of the waiver of appellate rights;" (2) "the defendant knowingly and voluntarily waived his appellate rights;" and (3) "enforcing the waiver would [not] result in a miscarriage of justice." 359 F.3d at 1325. The miscarriage-of-justice prong requires the defendant to show (a) his sentence relied on an impermissible factor such as race; (b) ineffective assistance of counsel in connection with the negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful and the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 1327 (quotations omitted). The government's motion to enforce addresses all of these considerations, asserting that none of them undermines defendant's appeal waiver.

As a threshold matter, Novosel contends that the government's motion to enforce the appeal waiver was untimely filed under 10th Cir. R. 27.2(A)(3), which provides that such motions "must be filed within 15 days after the notice of appeal is filed." The cited rule also allows for late filing "upon a showing of good cause," and, upon review of the government's motion and reply brief, we conclude that cause has been shown for the delayed filing here.

Turning to the merits, Novosel contends, presumably under the miscarriage-of-justice-prong, that his appeal waiver is unenforceable. He argues that he agreed to a plea bargain that did not include an appeal waiver provision and, although he subsequently agreed to include an appeal waiver provision in the plea agreement at the change-of-plea hearing, that modification to the agreement is not enforceable because it was not supported by any new consideration. He also contends that he did not knowingly and voluntarily agree to the appeal waiver and that some of the issues he wishes to raise on appeal are outside the scope of the appeal waiver.

I. Validity of Appeal Waiver

A. Background

It is undisputed that the written plea agreement sent to and agreed to by defendant during the plea negotiations did not include an appeal waiver provision. The defense counsel involved in the negotiations, Mr. Richards, has submitted an affidavit stating that an appeal waiver was never discussed during the plea negotiations and that he intentionally did not raise the issue. Opp'n to Mot. to Enforce, Ex. E, at 1. At the plea hearing, the district court inquired about the absence of an appeal waiver, and the government replied it had been omitted inadvertently. Mot. to Enforce, Ex. 2 (Plea Hr'g Tr.) at 31-32. The prosecutor then asked defense counsel, Mr. Houdek, if defendant had "any objection to the standard waiver of the right to appeal," and Mr. Houdek immediately said, "No," without expressing any concern or objection. Id. at 32. The district court ordered a recess to give counsel time to review the appeal waiver with Novosel.

Following the recess, Novosel represented to the court that he had read the plea agreement and discussed it with counsel and understood that it now included a waiver of his right to appeal. Id. at 34-35. The district court probed Novosel's understanding of the appeal waiver at great length, and Novosel repeatedly represented to the court that he knowingly and voluntarily agreed to waive his right to appeal any sentence determination made by the court so long as the sentence imposed was within the advisory guideline range determined appropriate by the court. Id. at 35-39. The district court explicitly informed Novosel that unless he was sentenced above the advisory guideline range, he was waiving his right to appeal "any of the court's decisions with regard to [his] sentence or anything else that has happened in the case." Id. at 35. Novosel told the court he understood this. Further, although Novosel initially included an objection to the appeal waiver in his objections to the presentence report, at the subsequent sentencing hearing, Novosel represented to the court that he was withdrawing that objection and waiving any objection to the inclusion of the appeal waiver in the plea agreement. Mot. to Enforce, Ex. 3 (Sentencing Hr'g Tr.) at 3.

B. Pre-Existing Duty Rule

In support of his current claim that the appeal waiver is unenforceable, and therefore unlawful, Novosel cites to a general contract principle, often referred to as the pre-existing duty rule, that past consideration is insufficient to support a new contract modification. See, e.g., Restatement (Second) of Contracts § 73 (1981) (noting general rule that performance of a pre-existing legal duty is not consideration); Contempo Design, Inc. v. Chicago & N.E. Ill. Dist. Council of Carpenters, 226 F.3d 535, 550 (7th Cir.2000) (en banc) ("The pre-existing duty rule states that promising to perform a duty that already is owed under an existing contract is not consideration, and, thus, a modification to the contract is unenforceable."). The purpose of the rule is "to prevent coercive modifications." Contempo Design, 226 F.3d at 550.

Notably, the general pre-existing duty rule relied upon by Novosel is not a universally accepted principle of contract law. Indeed, it has been abolished for sales of goods under the Uniform Commercial Code. See U.C.C. 2-209(1) ("An agreement modifying a contract within this Article needs no consideration to be binding."). One circuit court has recently noted that "[a]ll of the most influential treatises urge courts to avoid using the preexisting duty rule if even minimal consideration supports the contract." Johnson v. Seacor Marine Corp., 404 F.3d 871, 875 (5th Cir.2005). One such treatise states that "[t]he pre-existing duty rule is undergoing a slow erosion and . . . is destined to be overturned," and cautions that "[a] court should no longer accept this rule as fully established [and] should never use it as the major premise of a decision, at least without giving careful thought to the circumstances of the particular case." 2 Joseph M. Perillo & Helen H. Bender, Corbin on Contracts § 7.1, at 342 (rev. ed.1995).

A well-established exception to the preexisting duty rule is that contracts that have not been fully performed may be modified without new consideration if the modification is fair and equitable. See Restatement (Second) of Contracts § 89 (1981) ("A promise modifying a duty under a contract not fully performed on either side is binding . . . if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made. . . ."). As explained below, at the time Novosel accepted the appeal-waiver modification, not only was the plea agreement wholly executory, it was not yet binding because the district court had not yet accepted Novosel's guilty plea.

C. Formation of a Binding Plea Agreement

"The law governing the interpretation of plea agreements is an amalgam of constitutional, supervisory, and private contract law concerns." United States v. Wood, 378 F.3d 342, 348 (4th Cir.2004). This court has recognized that the "[r]ules of contract law inform the interpretation and enforcement of promises in a plea agreement." United States v. Rockwell Int'l Corp., 124 F.3d 1194, 1199 (10th Cir.1997).¹ The Second Circuit has recognized that a plea agreement can be challenged for lack of consideration, United States v. Brunetti, 376 F.3d 93, 95 (2d Cir.2004) (per curiam), and this court has assumed so for the sake of argument, United States v. Hernandez, 134 F.3d 1435, 1437-38 (10th Cir.1998). Novosel does not point us to, and we were unable to locate, any case applying the pre-existing duty rule to a plea-agreement modification, however.

Although the interpretation of a plea agreement may be informed by contract law, the formation and acceptance of a binding plea agreement is governed by ...