U.S. v. Schmidt

• Decision Date: 01 February 1995
• Docket Number: No. 93-3327,93-3327
• Citation: 47 F.3d 188
• Parties: , 25 Envtl. L. Rep. 20,617 UNITED STATES of America, Plaintiff-Appellee, v. Robert H. SCHMIDT and Lawrence B. Schmidt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 188

47 F.3d 188

40 ERC 1603, 25 Envtl. L. Rep. 20,617

UNITED STATES of America, Plaintiff-Appellee, v. Robert H. SCHMIDT and Lawrence B. Schmidt, Defendants-Appellants.

No. 93-3327.

United States Court of Appeals Seventh Circuit.

Argued April 22, 1994.

Decided Feb. 1, 1995.

Gerard A. Brost, Office of U.S. Atty., Peoria, IL (argued), for U.S.

Walter Jones, Jr., Brian Witus (argued), Pugh, Jones & Johnson, Chicago, IL, Frederick P. Kopp, Lousberg, Kopp, Kutsunis & Weng, Rock Island, IL, for Robert H. Schmidt and Lawrence B. Schmidt.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

The defendants, Robert H. Schmidt and Lawrence B. Schmidt, were charged in a four-count information with violations of the Clean Water Act. ¹ See 33 U.S.C. Secs. 1317(d), 1319(c) and 1319(c)(4). The defendants were also charged with intentional storage of hazardous wastes without a permit in violation of 42 U.S.C. Sec. 6928(d)(2). Thereafter, on March 5, 1993, the defendants, represented by counsel, pled guilty to the charges in the information (Robert pled guilty to Counts I, II, and III while Lawrence pled guilty to Counts III and IV). Included in each of the defendants' guilty pleas was the following clause:

The defendant recognizes that the court is not bound by any estimate of the probable sentencing guideline that the defendant may have received from his attorney, the government or the probation office. Realizing the uncertainty in estimating what sentence he will ultimately receive, the defendant knowingly waives his right to appeal the sentence imposed by the district court in exchange for the concessions made by the government in this agreement. ²

Record at 16-10 (plea agreements of Robert H. Schmidt and Lawrence B. Schmidt signed and approved by each of them on March 5, 1993) (emphasis added). At the sentencing hearing held on September 10, 1993, the district court sentenced Robert to thirty months imprisonment, imposed a fine of $50,000, and ordered a period of supervised release for two years. The court also sentenced Lawrence to twenty-four months imprisonment, imposed a fine of $25,000, and ordered supervised release for two years. On appeal, the defendants are challenging the district court's application of the United States Sentencing Guidelines.

As a preliminary matter, we must address the question of the defendants' waivers of their right to appeal. Although the government has not relied on the defendants' waivers, we are not precluded from affirming on that basis. See, e.g., United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.1991) (per curiam ) (appellate court has the discretion to overlook the government's failure to argue harmless error). In deciding whether to determine the merits of the Schmidts' arguments or overlook the government's failure to argue waiver, one controlling consideration is whether the waivers were "certain or debatable." Id. Accordingly, we have focused our attention on the circumstances surrounding the Schmidts' execution of their plea agreements, each of which contained the waiver of the right to appeal.

Several of our sister circuits have held that a waiver of a right to appeal contained within a guilty plea is enforceable. See United States v. Bushert, 997 F.2d 1343, 1347-50 (11th Cir.1993); United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir.1992); United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992); United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992); United States v. Navaro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990), cert. denied, 503 U.S. 942, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992); United States v. Wiggins, 905 F.2d 51, 52-54 (4th Cir.1990); see also United States v. Hendrickson, 22 F.3d 170, 174 (7th Cir.1994) (finding no waiver of the right to appeal because such a waiver "must be express and unambiguous"); Johnson v. United States, 838 F.2d 201, 203-04 (7th Cir.1988) (upholding waiver of right to appeal not contained in the plea agreement but in a separate pleading). These courts reasoned that it is well settled that a defendant may waive constitutional rights as part of a plea bargaining agreement. Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987). Although the right to appeal is statutory and not constitutional, Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977), the courts have upheld waiver of the statutory right to appeal. E.g., Melancon, 972 F.2d at 567-68.

The courts have, however, placed restrictions on the waiver of the right to appeal. Obviously a waiver will be upheld only if the record clearly demonstrates that the defendant knowingly and voluntarily entered into the plea agreement. Id. Additionally, despite a valid waiver of the right to appeal, a defendant could appeal his sentence if the trial court relied on a constitutionally impermissible factor such as race or if the court sentenced the defendant above the statutory maximum. United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992) ("a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court. For example, a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.").

In addition to the clear waiver of the right to appeal in the defendants' respective guilty pleas, this court has examined the transcript of the defendants' March 5, 1993 guilty plea hearing, including the district judge's advice to the respective defendants that their respective plea agreements contained a waiver of the right to appeal:

THE COURT: The agreements further provide that ... realizing the uncertainty in estimating the sentence that you will ultimately receive, each of you in the agreement knowingly waives your right to appeal the sentence imposed by this Court in exchange for concessions made by the government in this agreement.

So, in other words, you're giving up an important right here, the right to appeal the sentence if, for example, you feel it's too severe for some reason. Do you understand that?

ROBERT SCHMIDT: Yes, sir.

LAWRENCE SCHMIDT: Yes.

Guilty Plea Transcript at 26-27 (emphasis added). Later in the hearing, the court again asked the defendants if they understood that they were foregoing their right to appeal:

THE COURT: The Sentencing Reform Act has resulted in certain sentencing guidelines for judges to follow in determining the sentence in a criminal case. Have each of you and your attorneys talked about how the Sentencing Commission guidelines might apply to your case?

ROBERT SCHMIDT: Yes.

LAWRENCE SCHMIDT: Yes.

THE COURT: Do you understand that the Court will not be able to determine the guidelines sentenced [sic] for your case until after the presentence report has been completed and you and the government have had an opportunity to challenge the facts reported by the probation officer?

ROBERT SCHMIDT: Yes.

LAWRENCE SCHMIDT: Yes.

THE COURT: Do each of you understand that after it has been determined what guideline applies to the case, the Court has the authority in some circumstances to impose a sentence that is more severe or less severe than the sentence called for by the guidelines?

ROBERT SCHMIDT: Yes.

LAWRENCE SCHMIDT: Yes.

THE COURT: Do each of you understand that--I remind you that each of you has given up your right to appeal in this case. Do you understand that?

ROBERT SCHMIDT: Yes.

LAWRENCE SCHMIDT: Yes.

Guilty Plea Transcript at 34-35 (emphasis added).

These two excerpts from the guilty plea hearing clearly reveal that the waiver of the right to appeal was knowingly, voluntarily, and intelligently made. Moreover, the court also inquired of the defendants as to the voluntariness of their guilty pleas:

THE COURT: Has anyone made any other or different promise or assurance to you of any kind in an effort to induce you to enter a plea of guilty in this case?

ROBERT SCHMIDT: No sir.

LAWRENCE SCHMIDT: No.

THE COURT: Has anyone attempted in any way to force you to plead guilty in this case?

ROBERT SCHMIDT: No.

LAWRENCE SCHMIDT: No.

Guilty Plea Transcript at 31. The guilty plea hearing could not be more clear in reflecting that it was conducted in full accordance with Fed.R.Crim.P. 11, and reveals that each of the defendants knowingly and voluntarily waived his right to appeal his respective sentence. Moreover, the sentences did not exceed the statutory maximum nor is there any evidence that the court relied on a constitutionally impermissible factor such as race. See Marin, 961 F.2d at 496. In addition, we note that the defendants were both educated (Robert had a bachelor's degree from Augustana College while Lawrence had graduated from high school), together they owned and operated a successful business, they were represented by very able counsel, and they signed their respective guilty pleas. See Chichakly v. United States, 926 F.2d 624, 631 n. 12 (7th Cir.1991). Thus, their education, experience in the business world, and representation by highly qualified counsel makes it all the more evident that their respective waivers of their individual right to appeal were knowingly and voluntarily given.

The Schmidts' waivers of the right to appeal were clear and unequivocal. Although this court has jurisdiction to determine the merits of the defendants' appeal, we decline to exercise it. ³ Because we are convinced that each of the defendants, Robert Schmidt and Lawrence Schmidt, waived his right to appeal knowingly, voluntarily, and intelligently, we refuse to entertain their respective appeals. The defendants' appeals are DISMISSED.

RIPPLE, Circuit Judge, dissenting.

The right to appeal a sentence is a statutory right. See 18 U.S.C. Sec. 3742(a). As the majority notes, the circuits that have confronted the issue have held that a...