U.S. v. Rutan, 91-1154

• Decision Date: 12 February 1992
• Docket Number: No. 91-1154,91-1154
• Citation: 956 F.2d 827
• Parties: UNITED STATES of America, Appellee, v. Robert Michael RUTAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 827

956 F.2d 827

UNITED STATES of America, Appellee, v. Robert Michael RUTAN, Appellant.

No. 91-1154.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 27, 1991.

Decided Feb. 12, 1992.

George Walton Appleby, Des Moines, Iowa, argued, for appellant.

Linda R. Reade, Asst. U.S. Atty., Des Moines, Iowa, argued (Gene W. Shepard, U.S. Atty., on brief), for appellee.

Before MAGILL, BEAM and LOKEN, Circuit Judges.

BEAM, Circuit Judge.

Robert Michael Rutan appeals a sentence imposed under the sentencing guidelines. The government moves to dismiss on the ground that Rutan waived his right to an appeal. We hold that a defendant may, in a valid plea agreement, waive his right to appeal under 18 U.S.C. § 3742(a) (1985), and we hold that Rutan knowingly and voluntarily waived that right. The government's motion is granted and Rutan's appeal is dismissed.

I. BACKGROUND

Rutan was charged with bank robbery and use of a dangerous weapon in commission of a bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Supp.1991). Pursuant to a plea agreement, Rutan pled guilty to the bank robbery charge and agreed to waive his right to appeal his guideline sentence under section 3742(a). The government agreed, in the plea agreement, to dismiss the gun charge and further agreed not to resist a two-point reduction for acceptance of responsibility. The government also reserved its right to withdraw its recommendation on acceptance of responsibility if Rutan were to obstruct justice before he was sentenced. The district court accepted the plea after an extensive colloquy regarding the implications of the waiver.

Prior to sentencing, Rutan was charged with participating in an escape attempt. As a result, the government resisted the two-point reduction for acceptance of responsibility and, instead, sought a two-point enhancement for obstruction of justice. At the sentencing hearing, evidence was adduced regarding the purported escape attempt. Rutan testified that the attempt was primarily for the purpose of importing drugs into the prison for one of the other inmates and that he and the other inmates were merely "trying to see if we could" escape. Rutan was sentenced, as a career offender, to the maximum of twenty years. He was not given a two-point reduction for acceptance of responsibility or an enhancement for obstruction of justice. ¹

II. DISCUSSION

Rutan argues that his waiver of his right to an appeal is not enforceable because a defendant cannot knowingly and voluntarily waive an unknown right. He further argues that even if waivers are generally allowed, the waiver in his case cannot stand because the government breached the plea agreement by resisting the two-point reduction.

Plea bargaining does not violate the Constitution, even though a guilty plea waives important constitutional rights. Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987) (holding that a release of the right to file a 42 U.S.C. § 1983 action in exchange for dismissal of criminal charges is enforceable). It is well-settled that a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, and to the Fifth Amendment privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). A defendant may also waive the right to counsel. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). There is no constitutional right to an appeal; the right to appeal is purely a creature of statute. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977).

If defendants can waive fundamental constitutional rights, surely they are not precluded from waiving procedural rights granted by statute. United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990). See also United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir.1990). Accordingly, a defendant who pleads guilty and expressly waives the statutory right to raise objections to a sentence may not then seek to appeal the very sentence which itself was part of the agreement. Wiggins, 905 F.2d at 53. Such a waiver, however, is effective only insofar as it is the result of a knowing and voluntary decision to forego the right to appeal. United States v. Wessells, 936 F.2d 165, 167 (4th Cir.1991). We hold that if a waiver of appeal is made knowingly and voluntarily, it is enforceable.

The chief virtues of plea agreements are speed, economy, and finality. Wiggins, 905 F.2d at 54. Waivers of appeal in plea agreements preserve the finality of judgments and sentences imposed pursuant to valid pleas of guilty. Id. We also note that plea agreements are of value to the accused in order to gain concessions from the government. We feel constrained not to interfere with a defendant's right to enter into these agreements. We believe that such waivers should be given their proper effect. We also note that an illegal sentence can still be challenged under 28 U.S.C. § 2255 for habeas corpus relief, so a defendant is not entirely without recourse from an erroneous sentence. Also, a waiver of right to appeal would not prevent an appeal where the sentence imposed is not in accordance with the negotiated agreement. Navarro-Botello, 912 F.2d at 321.

Review of the transcript of the hearing on Rutan's change of plea shows that Rutan fully understood the consequences of the waiver. The trial judge engaged in extensive discussion with Rutan. The judge made clear to Rutan that mistakes are made in sentencing and that Rutan would have no recourse if a mistake were to occur. Though the district judge expressed reservations about the legality of waivers of sentencing guidelines appeals, he noted that there was authority to uphold such a waiver and...