U.S. v. Palmer

• Decision Date: 17 July 2006
• Docket Number: No. 04-21016.,04-21016.
• Citation: 456 F.3d 484
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glenn Ray PALMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.3d 484

UNITED STATES of America, Plaintiff-Appellee, v. Glenn Ray PALMER, Defendant-Appellant.

No. 04-21016.

United States Court of Appeals, Fifth Circuit.

July 17, 2006.

John Richard Berry (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Robert Kelsey Kry (argued), Baker Botts, Washington, DC, for Palmer.

Appeal from the United States District Court for the Southern District of Texas.

Before GARZA, PRADO and OWEN, Circuit Judges.

PRADO, Circuit Judge:

Glenn Ray Palmer pleaded guilty to use of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Palmer appeals, challenging the sufficiency of the factual bases of his convictions.

I. Factual Background and Procedural History

On April 19, 2004, police officers arrested Palmer outside his apartment in Houston, Texas. They then went to the apartment, where Rhonda Patterson, who identified herself as Palmer's girlfriend, provided consent to a search. An initial search turned up 19 rocks of crack cocaine above the kitchen sink, 24 rocks on top of the bedroom television, a firearm holster, a .40 caliber Glock magazine, 50 rounds of Winchester ammunition, 20 rounds of .40 caliber Federal ammunition and a safe. The officers obtained Palmer's consent to search the safe, which they did. It contained an unloaded Lorcin .380 caliber pistol and 23 rocks and a quarter "cookie" of crack cocaine. In total, the apartment contained 17.6 grams of cocaine base.

On August 27, 2004, following his indictment, Palmer and the government entered into a plea agreement. Its "Waiver of Appeal" clause included the following:

The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only (a) the sentence imposed above the statutory maximum; or (b) an upward departure from the Sentencing Guidelines, which had not been requested by the United States as set forth in Title 18 U.S.C. § 3742(b). Additionally, the defendant is aware that Title 28, U.S.C § 2255, affords the right to contest or "collaterally attack" a conviction or sentence after the conviction or sentence has become final. The defendant waives the right to contest his conviction or sentence by means of any post-conviction proceeding.

The defendant, by entering this plea, also waives any right to have facts that the law makes essential to the punishment either (1) charged in the indictment or (2) proven to a jury or (3) proved beyond a reasonable doubt. The defendant explicitly consents to be sentenced pursuant to the applicable Sentencing Guidelines. The defendant explicitly acknowledges that his plea to the charged offense(s) authorizes the court to impose any sentence authorized by the Sentencing Guidelines, up to and including the statutory maximum under the relevant statute(s).

The same day, pursuant to Federal Rule of Criminal Procedure 11, the district court conducted a hearing at which Palmer pleaded guilty. The following colloquy took place:

THE COURT: Where did you get the firearm?

THE DEFENDANT: Where did I get it?

THE COURT: Yes

THE DEFENDANT: Bought it off the street, sir.

THE COURT: Why did you have the firearm there in the safe?

THE DEFENDANT: I really don't even know. I wanted to get rid of it because it didn't work. I didn't have a clip for it. So, it was just sitting in there really, to tell you the truth.

THE COURT: Well, were you dealing drugs out of that apartment?

THE DEFENDANT: I was using drugs. No, not — no, sir, not at the apartment, sir.

THE COURT: Where were you dealing the drugs?

THE DEFENDANT: On the streets. And I was using drugs. I was an addict, sir.

THE COURT: Did you have the firearm to protect the drugs?

THE DEFENDANT: No, sir.

THE COURT: Well, why did you have the firearm in the safe?

THE DEFENDANT: Because there be kids in that house, and I just put it up there because — so couldn't nobody get to it.

THE COURT: Well, why did you buy the firearm?

THE DEFENDANT: Why did I buy it? Protect myself.

On December 15, 2004, the district court sentenced Palmer to 144 consecutive months' incarceration, 84 for the controlled substances charge and 60 for the gun charge. Palmer timely appealed.

II. Analysis

On appeal, Palmer argues that the plea agreement and colloquy do not provide a sufficient factual basis to support either of his convictions. The government disputes this, and also claims that Palmer's appeal waiver bars our consideration of his claims.

A. Appeal Waiver

As a preliminary matter, we must address whether the waiver in Palmer's plea agreement bars his appeal. Our review in this regard is de novo. United States v. Baymon, 312 F.3d 725, 727 (5th Cir.2002). A defendant may waive his statutory right to appeal provided (1) his or her waiver is knowing and voluntary, and (2) the waiver applies to the circumstances at hand, based on the plain language of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005)(dismissing appeal of sentence as barred by waiver).¹ In determining whether a waiver applies, we employ normal principles of contract interpretation. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Given the significance of the rights they involve, we construe appeal waivers narrowly, and against the government. United States v. Harris, 434 F.3d 767, 770 & n. 2 (5th Cir.2005) (citing United States v. Somner, 127 F.3d 405, 408 (5th Cir. 1997)).

Palmer argues that his waiver does not bar a direct appeal of conviction. He claims that the second and third sentences are limited to appeal of a sentence and the following two to collateral attacks; neither, he asserts, apply to a direct appeal of a conviction. The government does not, in truth, respond to this argument. Rather, its briefing assumes that the plea agreement constitutes a general waiver of all of Palmer's appeal rights. After reviewing the agreement itself and the communication between the district court and Palmer, we disagree with the government's assumption.

The main waiver paragraph of the agreement, quoted above, refers to sentencing appeals and collateral attacks. The first question is whether the language barring a sentencing appeal bars appeal of a conviction. We have rejected reading sentencing appeal waivers that broadly in the past. See United States v. Lopez, No. 05-50602, slip op. at 1, ___ Fed.Appx. ___, ___, 2006 WL 1519930, at *1 (5th Cir. May 26, 2006)("The waiver has no effect on his ability to appeal, or seek 28 U.S.C. § 2255 relief from, his conviction; the provision affects only his ability to appeal, or seek § 2255 relief from, his sentence."). The government does not argue why this situation calls for a contrary reading. The two main cases on which it relies to enforce the waiver both involve appeals challenging sentences, not convictions. See United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992); United States v. Portillo, 18 F.3d 290, 291 (5th Cir.1994). A defendant's waiver of his right to appeal a sentence is just that: it does not also constitute a waiver of his right to challenge a conviction.

Nor do the fourth and fifth sentences of the first paragraph of the appeal waiver section of the plea agreement bar Palmer's direct appeal. They refer to a collateral attack on a sentence or conviction. The government does not dispute that this appeal is direct and not a collateral attack. Nor does the phrase "any post-conviction proceeding" apply to a direct appeal. Contextually, the phrase follows a sentence stipulating Palmer's awareness of his collateral-attack rights. Reading the phrase broadly is inconsistent with our distinguishing between direct appeals and post-conviction proceedings. See, e.g., United States v. Johnson, 244 F.3d 134 (Table), 2000 WL 1901456 at *1 n. 1 (5th Cir.2000)(per curiam).

The second paragraph of the appeal waiver also does not bar this appeal. That paragraph includes two stipulations: (1) a waiver of Palmer's right to have the facts supporting his sentences charged in the indictment, proven to a jury or proven beyond a reasonable doubt; and (2) a consent to be sentenced pursuant to the Sentencing Guidelines. In neither paragraph do we find reference to a waiver of a right to directly appeal a conviction.

There are two lines in the plea hearing colloquy between the district court and Palmer potentially suggestive of a general appeal waiver, but they ultimately fail to establish the generality of Palmer's waiver. Following direct questioning regarding his waiver of sentencing appeals and collateral attacks, the court asked Palmer: "Have you talked to your attorney about giving up your right to appeal and giving up your right to collaterally attack your sentence or judgment?" Palmer replied: "Yes, sir." The use of the phrase "right to appeal" could be read broadly to include appeal of a conviction; but its parallel placement to mention of the collateral attack suggests it was a short-hand reference to the waiver of sentencing appeals, especially given the fact that the phrase followed specific questions about both explicit waivers. Given our duty to construe appeal waivers narrowly, we read Palmer's agreement as having preserved his right to challenge his conviction.²

B. Adequacy of Factual Basis for Convictions

Palmer challenges the adequacy of the factual admissions to support his convictions under both sections 924 and 841. Because he raises this argument for first time on appeal, we review for plain error. United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001). This reviewing posture limits our power to correct errors not objected to below, United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005); and we may not correct an error unless it is plain and affects the substantial rights of the party raising the issue. Id. If these conditions are...