U.S. v. Rubbo, No. 04-10874.

• Decision Date: 21 January 2005
• Docket Number: No. 04-10874.
• Citation: 396 F.3d 1330
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angela Ann RUBBO, a.k.a. Angie, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

396 F.3d 1330

UNITED STATES of America, Plaintiff-Appellee, v. Angela Ann RUBBO, a.k.a. Angie, Defendant-Appellant.

No. 04-10874.

United States Court of Appeals, Eleventh Circuit.

January 21, 2005.

Fred Haddad, Haddad & Hester, P.A., Fort Lauderdale, FL, for Defendant-Appellant.

Lisette M. Reid, Anne R. Schultz, Asst. U.S. Atty., Harriett R. Galvin, Asst. U.S. Atty., Miami, FL, for Plaintiff-Appellee.

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

Before CARNES and COX, Circuit Judges, and MILLS^*, District Judge.

CARNES, Circuit Judge:

This Court has previously upheld the enforceability of appeal waivers that are knowingly and voluntarily entered. E.g., United States v. Bushert, 997 F.2d 1343 (11th Cir.1993). We have explained how they serve important interests of the defendant as well as the government, United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir.1997), and we could have added the judicial system itself to the list of beneficiaries. We have also held that "[a] waiver of the right to appeal includes a waiver of the right to appeal difficult or debatable legal issues — indeed, it includes a waiver of the right to appeal blatant error." United States v. Howle, 166 F.3d 1166, 1169 (11th Cir.1999) (footnote omitted).

Angela Rubbo does not dispute any of that, but she does contend that the appeal waiver she agreed to as part of her plea bargain ought not prevent her from raising sentencing issues arising under the Supreme Court's recent decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005). Her argument centers around the "maximum permitted by statute" exception in the waiver she entered. It is an interesting argument, but ultimately not a persuasive one.

A sixty-three count indictment charged Rubbo with mail fraud, wire fraud, money laundering, and various conspiracies, stemming from a multi-million dollar telemarketing fraud operation that she and her three sons ran. Through plea negotiations with prosecutors, Rubbo's attorney managed to whittle the charges down to one: conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371. In return for the government agreeing to dismiss the remaining sixty-two counts against her and for other favors at sentencing, Rubbo agreed to plead guilty, cooperate, and waive her right to appeal any sentence she received subject to a few exceptions. After two hearings, the district court granted Rubbo's motion to change her plea to guilty, accepted that new plea, and adjudicated Rubbo guilty of the one count of violating § 371.

During the course of one of those hearings, the district court engaged in a colloquy with Rubbo in which it ensured that she fully understood the appeal waiver part of her plea agreement and voluntarily consented to it. To the extent that Rubbo contends that she did not knowingly and voluntarily agree to the appeal waiver, we reject that contention because it is inconsistent with the record.

At sentencing, over Rubbo's objections the district court imposed two enhancements. One was a two-level enhancement either because the offense involved relocating a fraudulent scheme to another jurisdiction to elude law enforcement, U.S.S.G. § 2F1.1(b)(5)(A) (Nov.1998), or because it used sophisticated means, U.S.S.G. § 2F1.1(b)(5)(C) (Nov.1998). The other was a two-level enhancement for being an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, pursuant to U.S.S.G. § 3B1.1(c) (Nov.1998). The district court ultimately sentenced Rubbo to forty-eight months' imprisonment, twelve short of the statutory cap of sixty months for the crime. See 18 U.S.C. § 371.

Notwithstanding her promise that she would not appeal, Rubbo did. She filed a brief contending that the impositions of the enhancements were erroneous applications of the guidelines. The government responded with a motion to dismiss Rubbo's appeal based on the waiver. See generally Buchanan, 131 F.3d at 1008-09 (dismissal of appeal based on waiver should, if possible, occur on motion before the government's brief is filed).

Rubbo filed a reply to the government's dismissal motion in which she indicated that in light of the intervening decision in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), she wanted to raise on appeal the issue of whether the judge-imposed enhancements she had attacked in her initial brief, which coincidentally had been filed on the very day that Blakely was released, were unconstitutionally imposed in violation of the Sixth Amendment. Rubbo argued that issue was outside the scope of her appeal waiver because, if she were right on the merits of it, the sentence imposed on her exceeded the "statutory maximum" as defined in Blakely and her waiver explicitly excepted sentences in excess of the statutory maximum.¹

The appeal waiver paragraph in the plea agreement that Rubbo signed says this:

The defendant is aware that Title 18, United States Code, Section 3742 affords the defendant the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by the United States in this plea agreement, the defendant hereby waives all rights conferred by Title 18, United States Code, Section 3742 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure from the guideline range the Court establishes at sentencing. The defendant further understands that nothing in this plea agreement shall affect the government's right and/or duty to appeal as set forth in 18 U.S.C. § 3742(b). However, if the United States appeals the defendant's sentence pursuant to Section 3742(b), the defendant shall be released from the waiver of appellate rights. The defendant understands that, although the defendant will be sentenced in conformity with the Sentencing Guidelines, by this agreement the defendant waives the right to appeal the sentence on the basis that the sentence is the result of an incorrect application of the Sentencing Guidelines.

The general waiver language — "all rights conferred by Title 18, United States Code, Section 3742 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed" — certainly is broad enough to cover any issues arising from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, up to and including Booker. Rubbo has not contended to the contrary. Her point is that there is an exception to that broad waiver. We have emphasized in the block quote the language setting out that exception, which is the linchpin to Rubbo's contention that her appeal waiver does not apply.

Rubbo's position is not outlandish. The plea agreement language permitting her to escape the waiver if "the sentence exceeds the maximum permitted by statute" is semantically similar to the "statutory maximum" term that was a key component of the Supreme Court's reasoning and analysis in Blakely. In its opinion in that case, the Court gave this definition of that term: "Our precedents make clear, however, that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537 (emphasis omitted). Two days before we heard oral argument in this case, the Supreme Court released its Booker decision, and the Blakely issue discussed in Rubbo's opposition to the motion to dismiss this appeal became a Booker issue. The Supreme Court in Booker quoted the "statutory maximum" definition from its Blakely opinion. See Booker, 125 S.Ct. at ___, 2005 WL 50108, at *7.

Because the sentence the district court imposed on Rubbo goes beyond that permitted on the basis of the facts she admitted during her plea colloquy, Rubbo contends that it exceeds the statutory maximum sentence for Booker purposes. Given that, she says that her sentence "exceeds the maximum permitted by statute" for purposes of the exception to the appeal waiver contained in her plea agreement. The problem with Rubbo's contention is its invisible premise, which is that the "statutory maximum" for Booker purposes is the same thing as "the maximum permitted by statute" for purposes of Rubbo's appeal waiver. The two are not the same. The context in which the terms are used and the meaning they convey are different. After all, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) (Holmes, J.).

In the Apprendi /Booker line of decisions, the Supreme Court used the term "statutory maximum" to describe the parameters of the rule announced in those decisions, a rule that had nothing to do with the scope of appeal waivers. Booker, 125 S.Ct. at 748, 2005 WL 50108, at *7; Blakely, 124 S.Ct. at 2536-37; Apprendi, 530 U.S. at 487 n. 13 & 490, 120 S.Ct. at 2361 n. 13 & 2362-63. The term was defined in a specialized, which is to say a non-natural, sense. It was defined that way not only for semantic convenience but also in order to justify and explain the holdings the Court entered in those decisions. Everyone knows that a judge must not impose a sentence in excess of the maximum that is statutorily specified for the crime. See, e.g., Bushert, 997 F.2d at 1350 n. 18 (describing as "axiomatic" the rule that "a court of the United States may not impose a penalty for a crime beyond that which is authorized by statute"). By labeling a sentence that the judge may not impose under the Apprendi /Booker doctrine as one in excess of the ...