U.S. v. Ogden, 96-2754

• Decision Date: 16 December 1996
• Docket Number: No. 96-2754,96-2754
• Citation: 102 F.3d 887
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles OGDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 887

102 F.3d 887

UNITED STATES of America, Plaintiff-Appellee, v. Charles OGDEN, Defendant-Appellant.

No. 96-2754.

United States Court of Appeals Seventh Circuit.

Submitted Oct. 7, 1996.

Decided Dec. 16, 1996.

Thomas A. Keith (submitted), Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Paul R. Byers, Aurora, IN, for Defendant-Appellant.

Before FLAUM, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

In recent years, the government has taken to including a waiver of the right to appeal the sentence imposed in some of its plea agreements. This case illustrates the confusion that can arise due to the fact that a significant period of time often elapses between the time the court accepts a guilty plea and the time it pronounces sentence. The question before us is straightforward: will a routine comment by the court at the conclusion of the sentencing hearing to the effect that the defendant has the right to appeal override an otherwise valid waiver, or will the defendant be bound to his bargain?

On April 5, 1996, Charles Ogden pleaded guilty to the use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958. He also entered into a plea agreement, which provided in part that:

The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255.

During his plea hearing, after a thorough colloquy with the district judge, Ogden again expressly waived his right to appeal. The court subsequently sentenced him on July 12, 1996, to 87 months imprisonment, a $65,000 fine, a supervised release term of two years, and a $50 special assessment. Under 18 U.S.C. § 1958, he could have been sentenced to a maximum penalty of ten years of imprisonment, a maximum fine of $250,000, a supervised release term of not more than three years, and a $50 special assessment.

The problem before us today arose when the district court, at the conclusion of the sentencing hearing, stated that Ogden had a right to appeal his sentence and that his notice of appeal would be due within ten days. Taking what he perceived to be the invitation, Ogden filed a notice of appeal. The government has now moved to dismiss the appeal for lack of jurisdiction, citing Ogden's written waiver in the plea agreement and his statement to the district court during the Rule 11 colloquy. In response, Ogden admits that he waived his right to appeal on both those occasions, but he argues that the district court's parting words at the end of the sentencing hearing somehow overrode this part of the plea agreement and restored his ability to appeal. We think that he has read too much into the court's statement and too little into the language of the plea agreement.

First, the district court's comments were general and did not make any reference whatsoever to the plea agreement. They were nothing more than the routine admonishment normally required by Fed.R.Crim.P. 32(c)(5). Had the court intended to unravel the plea agreement by dissecting out its waiver of appeal provision, the procedure would necessarily have been quite different. Criminal Rule 32(e) allows the court to permit the withdrawal of a plea prior to the imposition of sentencing, but there was no motion to set aside the plea agreement before the court. If the district court had intended to revisit the issue of Ogden's appeal waiver, nothing short of setting aside the plea agreement would have sufficed. Cf. United States v. Barnes, 83 F.3d 934, 941 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996) (district court cannot retain a plea but discard the agreed-upon sentence). Yet the court's statement came after sentence...