U.S. v. Ready

• Decision Date: 02 May 1996
• Docket Number: Nos. 840,D,841,s. 840
• Citation: 82 F.3d 551
• Parties: UNITED STATES of America, Appellee, v. Frank E. READY, Defendant-Appellant. ockets 95-1211(L), 95-1252.
• Court: U.S. Court of Appeals — Second Circuit

Page 551

82 F.3d 551

UNITED STATES of America, Appellee, v. Frank E. READY, Defendant-Appellant.

Nos. 840, 841, Dockets 95-1211(L), 95-1252.

United States Court of Appeals Second Circuit.

Argued Jan. 3, 1996.

Decided May 2, 1996.

Appeal from a judgment of the United States District Court for the Northern District of New York (McAvoy, J.), ordering, inter alia, the defendant to pay restitution to the victims of his mail fraud scheme. The defendant claims the restitution penalty was illegally imposed. The Government argues that, under the terms of the defendant's plea agreement, the defendant waived his right to appeal his sentence. We hold that the defendant did not waive his right to appeal, but reject the defendant's argument that the sentence was illegally imposed.

George A. Yanthis, Assistant United States Attorney, Albany, NY (Thomas J. Maroney, United States Attorney for the Northern District of New York, Albany, NY, on the brief), for Appellee.

Philip L. Weinstein, The Legal Aid Society, Federal Defender Division, Appeals Bureau New York City, for Defendant-Appellant.

Before: McLAUGHLIN, JACOBS and CALABRESI, Circuit Judges.

JACOBS, Circuit Judge:

Frank Ready pled guilty to wire fraud under 18 U.S.C. § 1343. His plea agreement included a waiver of his right to appeal his sentence. His sentence included a penalty of restitution. On appeal, he claims that the restitution penalty was imposed illegally. The Government argues that Ready's waiver of his right to appeal bars this challenge, and that in any case his claim fails on the merits.

After the parties filed their appellate briefs but prior to oral argument, we decided United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995), in which we held that a defendant may waive his right to appeal an illegally imposed sentence. At oral argument the Government stressed that Yemitan provided categorical support for its waiver argument. On questioning, however, the Government conceded that the waiver in Ready's plea agreement does not constitute a blanket waiver of his appellate rights, and that, under Yemitan, the circumstances surrounding his plea and the terms of the agreement must be scrutinized to determine the waiver's scope.

We conclude that the waiver contained in Ready's plea agreement does not, under the circumstances presented, operate as a waiver of Ready's right to appeal his restitution penalty. Reaching the merits of Ready's challenge to his sentence, we also decide that the restitution penalty was legally and properly imposed. We discuss in this opinion only our conclusion that Ready did not waive his right to appeal. Ready's substantive challenges to his restitution penalty raise no new legal issues, and we reject them in a summary order also issued today.

I

There are two plea agreements in this case. One of them contains a waiver of Ready's right to appeal; the other does not. Ready entered into the first plea agreement with the Office of the United States Attorney for the Northern District of New York, pleading guilty to Count Five of a five-count indictment that charged him with a scheme to defraud the federal government (the "New York plea agreement"). Count Five concerned a telephone conversation that furthered the scheme, in violation of the wire fraud statute, 18 U.S.C. § 1343. In pleading guilty to this count, Ready agreed to pay about $16,000 in restitution. He and the Government explicitly "reserve[d] the right to appeal any sentence imposed in this matter."

About six months later, Ready was charged in the District of Maryland with two additional counts of wire fraud, relating to a similar scheme to defraud the United States and several private companies. In an agreement with the United States Attorney's Office for that district, he pled guilty to both counts (the "Maryland plea agreement"). This agreement, analyzed below, contains the disputed waiver of Ready's right to appeal.

Paragraph 2 of the Maryland plea agreement (drafted as a letter to Ready's counsel) sets out the possible punishment:

The maximum sentence provided by statute for the offense to which your client is pleading guilty is as follows: Five years imprisonment per count and a fine of $250,000 per count, followed by a term of supervised release of three years. In addition, your client must pay $100 as a special assessment under 18 U.S.C. Section 3013, which will be due and should be paid at time of sentencing unless otherwise ordered by the Court. This Court may also order your client to make restitution pursuant to 18 U.S.C. Sections 3663 and 3664.

Ready agreed in paragraph 3B that the applicable offense level for sentencing under the Guidelines was 22. In paragraph 4, the Government expressly withheld any assurance that it would recommend a particular prison term within the Guidelines range, or that it would recommend a particular level of restitution:

At your client's sentencing this Office will make any recommendation regarding the sentence in the guideline range it deems appropriate; and make any recommendation regarding restitution it deems appropriate.

Ready's Maryland plea agreement did not recite his acceptance of a specific restitution amount.

Paragraph 5 contains the waiver of Ready's right to appeal:

Your client and the United States knowingly and expressly waive all rights conferred by 18 U.S.C. Section 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the guideline range, reserving only the right to appeal from a sentence resulting from an adjusted base offense level of greater than twenty-three. ¹

Finally, paragraph 6 limits Ready's ability to withdraw from his guilty plea:

If the Court should impose any sentence up to the maximum established by statute, your client cannot, for that reason alone, withdraw his guilty plea, and will remain bound to fulfill all of his obligations under this agreement.

(Emphasis added.)

Ready's two pleas were consolidated before Judge McAvoy in the Northern District of New York. Before accepting the pleas, the district court duly advised Ready that he was waiving a panoply of rights by pleading guilty, and ascertained from Ready that he understood "the consequences of pleading guilty." However, the court did not include the right to appeal in its list of the rights waived by Ready.

Later in the hearing, the court asked Ready's trial lawyer if he had "advised Mr. Ready of his rights, the nature of the charges and consequences of pleading guilty." Ready's counsel said that he had, and specified that "I have advised him that ... pursuant to the plea agreement in Maryland, he gives up his right to appeal any sentence that might be rendered here pursuant to that agreement."

At the end of the hearing, in a short colloquy with Ready's counsel, the court stated that Ready had not fully waived his right to appeal:

THE COURT: [Addressing Ready.] You have the right to appeal this sentence to certain limited circumstances--

READY'S LAWYER: I don't believe that's correct, according to the plea agreement, your Honor.

THE COURT: Ye[s]. The plea agreement talks about certain things with respect to the sentence. But if I impose an illegal sentence on him, he certainly would have the right to appeal that. So you should consult with your attorney before hitting him in the ribs again as to any appeal.

The court sentenced Ready based on an offense level of 22, as the Maryland plea agreement contemplated. Ready's criminal history category of VI yielded a Guidelines imprisonment range of 84 to 105 months, and a fine range of $7,500 to $75,000. He was sentenced to a total of 100 months in prison. No fine was imposed "because of the defendant's inability to pay."

The court imposed a restitution penalty of approximately $308,000. Of that, $16,000 was the amount agreed to in the New York plea agreement, and $292,000 was the amount attributed to the Maryland indictment. The court drew the $292,000 figure from the presentencing report, which listed the losses suffered by five corporate victims of Ready's scheme. Ready claims that the court failed to "consider" his "financial resources ... and earning ability" before imposing restitution, as required by 18 U.S.C. § 3664(a). The restitution penalty, he says, was therefore imposed illegally. But if Ready completely waived his right to appeal the restitution imposed pursuant to the Maryland plea agreement, then he cannot contest the legality of the $292,000 portion of the restitution penalty.

II

A criminal defendant has no constitutional right to an appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983); United States v. Matista, 932 F.2d 1055, 1056 (2d Cir.1991). But see Honda Motor Co. v. Oberg, --- U.S. ----, ----, 114 S.Ct. 2331, 2341, 129 L.Ed.2d 336 (1994) (failure to provide judicial review of jury's punitive damages award violates defendant's due process rights). Once a system of appellate courts is put into place, however, a criminal defendant's ability to appeal may not be unduly burdened. North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 2206, 104 L.Ed.2d 865 (1989); Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct. 585, 590-91, 100 L.Ed. 891 (1956).

The right to appeal a criminal conviction and sentence is statutory. Prior to the passage of the Sentencing Reform Act of 1984 (the "1984 Act"), which brought us the Sentencing Guidelines, criminal appeals were taken pursuant to 28 U.S.C. § 1291. That statute simply allows appellate courts to hear appeals from "all final decisions of the district courts." The right to appeal a sentence under § 1291 was limited to sentences that were imposed above statutory limits, that were the result of material misinformation, or that were based on a constitutionally impermissible factor. United States v. Tucker, 404 U.S. 443,...