U.S. v. Speelman
| Decision Date | 16 December 2005 |
| Docket Number | No. 04-30067.,No. 04-30068.,No. 04-30069.,04-30067.,04-30069.,04-30068. |
| Citation | 431 F.3d 1226 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Gordon SPEELMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brad L. Arndorfer, Billings, MT, for the defendant-appellant.
Marcia Hurd, Assistant United States Attorney, Billings, MT, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. Nos. CR-02-00130-RFC, CR-03-00068-RFC, CR-02-00142-RFC.
Before SCHROEDER, Chief Judge, ALARCÓN and KLEINFELD, Circuit Judges.
Jeffrey Speelman ("Mr. Speelman") appeals from the district court's sentencing decision. He contends that the district court erred in enhancing his sentence based on criminal conduct alleged in a charge dismissed pursuant to his plea bargain. He also maintains that the district court violated the Double Jeopardy Clause by applying an upward adjustment based on the age of the victim. The Government maintains that we cannot consider the merits of Mr. Speelman's contentions because he waived his right to file a direct appeal in his plea agreement.
We reject the Government's contention that Mr. Speelman expressly waived his right to file a direct appeal. We affirm the district court's sentencing decision, however, because we conclude that the district court did not err in its interpretation of the Sentencing Guidelines. We remand in accordance with this court's decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc) because the court imposed its sentence before the Supreme Court instructed that the Sentencing Guidelines were not mandatory.
Mr. Speelman was indicted on November 21, 2002. He was charged with the Sexual Exploitation of Children, a Class A felony, in violation of 18 U.S.C. § 2251 (Count I); Receipt of Child Pornography, a Class C felony, in violation of 18 U.S.C. § 2252(A)(2) (Count II); Possession of Child Pornography, a Class D felony, in violation of 18 U.S.C. § 2252(a)(5)(B) (Count III); Forfeiture pursuant to 18 U.S.C. § 2253.
On December 20, 2002, he was indicted and charged in two counts with the crime of Aggravated Sexual Abuse of a Minor who had not attained the age of twelve years, a Class A felony, in violation of 18 U.S.C. §§ 1153 and 2241(c). Mr. Speelman was again indicted on May 23, 2005 with Abusive Sexual Contact, a Class C felony, in violation of 18 U.S.C. § 2241(c).
Mr. Speelman entered into a plea agreement on August 25, 2003. He agreed to enter a plea to Count II (receipt of child pornography) and Count III (possession of child pornography) of the November 21, 2002 indictment, Count II of the December 20, 2002 indictment (aggravated sexual abuse of a minor), and Count II of the May 23, 2003 indictment (abusive sexual contact). He also agreed to forward any assets in his possession and control subject to forfeiture. In exchange for these guilty pleas, the United States Attorney for the District of Montana agreed to dismiss the remaining counts in the indictments.
Mr. Speelman stipulated in the plea agreement that he "knowingly, expressly and voluntarily waives the right to contest either the conviction or the sentence or the application of the sentencing guidelines in any post-conviction proceeding including any proceeding under 28 U.S.C. § 2255." Mr. Speelman changed his plea to guilty pursuant to the terms of the plea agreement on September 9, 2003.
The United States Probation Office prepared a presentence investigation report ("PSR"). It recommended a guideline range of 262 to 327 months. Mr. Speelman objected on two grounds. He asserted that the PSR erroneously cross-referenced a Class D felony to a Class A felony that had been dismissed. He also argued "that it would violate the Double Jeopardy Clause to place the offense of aggravated Sexual Abuse of a minor in the aggravated guidelines and again increase the punishment because of the age of the child." Defendant/Appellant Opening Br. at 5.
The district court overruled each of Mr. Speelman's objections to the PSR and sentenced him to serve 262 months in prison. Mr. Speelman filed a timely notice of appeal from the district court's sentencing decision pursuant to 18 U.S.C. § 3742(a).
The Government contends that we do not have the jurisdiction to consider the merits of Mr. Speelman's direct appeal because in his plea agreement he waived his right to contest his sentence in any postconviction proceeding.
We review de novo whether a defendant has waived his or her right to appeal. United States v. Portillo-Cano, 192 F.3d 1246, 1249 (9th Cir.1999). "A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005).
Our interpretation of the terms of the plea agreement are controlled by the principles of contract law. See, e.g., United States v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir.1997) (). We therefore will "generally enforce the plain language of a plea agreement if it is clear and unambiguous on its face." Jeronimo, 398 F.3d at 1153. "As with other contracts," however, "provisions of plea agreements are occasionally ambiguous; the government ordinarily must bear responsibility for any lack of clarity." United States v. De la Fuente, 8 F.3d 1333, 1338 (9th Cir.1993) (quotation marks omitted).
Under standard principles of contract interpretation, Mr. Speelman did not waive his right to directly appeal his sentence in the plea agreement. Under federal law, a defendant can seek correction of an allegedly illegal sentence by means of three discrete procedures. Pursuant to Rule 35 of the Federal Rules of Criminal Procedure, "[w]ithin 7 days after sentencing the court may correct a sentence that resulted from arithmetical, technical, or other clear error." A defendant may file a direct appeal "for review of an otherwise final sentence." 18 U.S.C. § 3742.1 A defendant convicted in federal court may also collaterally attack a sentence pursuant to 28 U.S.C. § 2255 by filing a motion before the court that imposed the sentence to vacate, set aside, or correct a sentence that was imposed in violation of the Constitution or the law of the United States.2 "An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." 28 U.S.C. § 2255.
Mr. Speelman did not file a motion pursuant to Rule 35, nor has he collaterally attacked the sentence by filing a motion in the district court pursuant to § 2255. Instead, he has relied on the direct appeal provisions of 18 U.S.C. § 3742.
The Government has failed to cite any authority to support its argument that "[t]he appeal waiver provision in this case prohibits Speelman from any appellate action whether it be by direct appeal or by collateral attack." Appellee's September 1, 2005 Letter Br. at 1. We note at the outset of our discussion that the waiver provision makes no reference to a "direct appeal" from the court's judgment or sentence. During oral argument, counsel for the Government forthrightly conceded that the waiver provision, by failing to refer to a direct appeal, in addition to a contest of the judgment or sentence in any postconviction proceeding, was "not as artfully worded as it could be and believe me it certainly will be more artfully worded in the future."
The mischief in the language used in its plea agreement by the United States Attorney for the District of Montana is the ambiguous reference to the waiver of "the right to contest. . . the sentence . . . in any post-conviction proceeding. . . ." (emphasis added). It is unclear whether the Government intended that the waiver language apply to the right to file a direct appeal from the sentence pursuant to 18 U.S.C. § 3742, the right to file a motion in the district court for a correction of sentence pursuant to Rule 35, or the right to file a writ of habeas corpus in this court from the district court's denial of a motion to vacate, set aside, or correct a sentence pursuant to § 2255.
In common legal usage, the term "postconviction proceeding" refers to a collateral challenge to a judgment or sentence, as opposed to a direct appeal. For example, in Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), the Supreme Court held that "[a] motion by a federal prisoner for postconviction relief under 28 U.S.C. § 2255 is subject to a one-year time limitation that generally runs from the date on which the judgment of conviction becomes final." Id. at 524, 123 S.Ct. 1072 (emphasis added). In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), the Court stated that a state court prisoner can challenge the constitutionality of his conviction "on direct appeal, in postconviction proceedings available under state law, and in a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (1994 ed. and Supp. V)." Id. at 381, 121 S.Ct. 1578 (emphasis added).
Counsel for the Government also advised this court that the waiver language contained in the plea agreements drafted by the United States Attorney's Office for the District of Montana is not the same as that employed by its counterparts in the rest of the United States. In other districts, the plea agreements require the defendant to waive both his or her right to appeal the merits of the judgment and sentence, and to contest the judgment and sentence in any postconviction proceeding. See e.g., United States v. Lockwood, 416 F.3d 604, 605 n. 1 (7th Cir.2005) (...
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