U.S. v. Story

• Decision Date: 02 February 2006
• Docket Number: No. 04-41323.,04-41323.
• Citation: 439 F.3d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Jerome STORY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.3d 226

UNITED STATES of America, Plaintiff-Appellee, v. Paul Jerome STORY, Defendant-Appellant.

No. 04-41323.

United States Court of Appeals, Fifth Circuit.

February 2, 2006.

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Tracey M. Batson, Asst. U.S. Atty., Plano, TX, for U.S.

Denise S. Benson, Amy R. Blalock, Asst. Fed. Pub. Defenders, Tyler, TX, for Story.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, PRADO and OWEN, Circuit Judges.

PRADO, Circuit Judge:

Paul Jerome Story appeals his sentence contending that the district court improperly calculated his base level offense using facts not found by a jury or admitted by plea, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government responds that the district judge provided an alternative sentence in the event that Booker declared the Federal Sentencing Guidelines ("Guidelines") advisory rather than mandatory. We find the district judge's pronouncement of alternative sentences ambiguous and therefore VACATE and REMAND for resentencing.

I

On September 26, 2003, officers executing a search warrant at Story's home found eleven firearms, a small quantity of methamphetamine, precursor chemicals, drug paraphernalia, and other items typically used in a methamphetamine lab. Story pleaded guilty to a one-count indictment charging him with possession of a firearm as an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3). Story stipulated that he used methamphetamine and that he had knowingly possessed a Mossberg, Model 500E,.410 gauge caliber shotgun.

Under United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2K2.1, section 922(g) has a base offense level of 12. However, the probation officer concluded that Story's base offense level was 18, pursuant to U.S.S.G. § 2K2.1(a)(5), because the firearms found by the officers included a "Norinco," a semiautomatic assault weapon specifically listed in 18 U.S.C. § 921(a)(30).¹ In addition, the probation officer increased the base offense level by four pursuant to U.S.S.G. § 2K2.1(b)(1)(B) because officers found eleven firearms at Story's home.² Finally, the probation officer increased the base offense level by an additional four pursuant to U.S.S.G. § 2K2.1(b)(5) because Story possessed a firearm in connection with the felony offenses of possessing methamphetamine and possessing ingredients used to manufacture methamphetamine. The probation officer reported that Story did not qualify for a downward adjustment for acceptance of responsibility because he had twice tested positive for methamphetamine while on pretrial supervision. Thus, the probation officer concluded the total offense level was 26. Having a criminal history category of I, Story's punishment under the Guidelines could range from 63 to 87 months. The district judge gave Story a 63-month sentence.

Story's 63-month sentence was based in part on facts that he did not admit in his plea or stipulate in the factual basis. Story objected that the enhancements for the number of weapons and for his possession of a weapon in connection with another felony were barred by Blakely v. Washington and that he should be granted a three-level downward adjustment for acceptance of responsibility.³ He did not make a Blakely objection to the probation officer's assignment of base offense level 18 based on Story's possession of the Norinco semiautomatic weapon prohibited under § 921(a)(30). The district court overruled Story's objections and adopted the factual findings in the probation officer's presentence report. Since Story's sentencing proceeding occurred prior to the Booker opinion, the district judge likely assumed the Guidelines were mandatory, pursuant to 18 U.S.C. § 3553(b)(1).⁴ The district judge sentenced Story to a 63-month term of imprisonment and a three-year term of supervised release.

In anticipation of Booker, the district judge orally imposed two alternative sentences. First, the court imposed "an alternative sentence in the event the Guidelines are declared to be unconstitutional and that would be the same term of imprisonment as the Court has imposed under the Guidelines." Second, the court imposed an alternative sentence

in the event the Guidelines are—[if] it's determined that they can be applied in a Constitutional manner by adhering to the rules set out in Blakely. In other words, if the jury either finds beyond a reasonable doubt that the enhancement factors are there or they're admitted to by the Defendant. And that sentence, that Blakely sentence I'll call it, would be a term of imprisonment of 21 months.

The written judgment does not include the alternative sentences imposed by the district court.

Story filed a timely appeal. However, Story's plea agreement included the following appeal waiver provision:

Except as otherwise provided in this agreement, the Defendant expressly waives the right to appeal his sentence on all grounds, including an appeal of sentencing pursuant to 18 U.S.C. [§] 3742. The Defendant further agrees not to contest his sentence in any post conviction proceeding, including, but not limited to a proceeding under 28 U.S.C. 2255. The Defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of the statutory maximum; (b) any upward departure from the guideline range deemed most applicable by the sentencing court; (c) arithmetic errors in the Guidelines calculations; and (d) a claim of ineffective assistance of counsel that affects the validity of the waiver itself. The Defendant knowingly and voluntarily waives his right to appeal in exchange for the concessions made by the Government in this argument and with full understanding that the Court has not determined his sentence.

The government has not sought to enforce the appeal waiver nor has it explicitly declined to seek its enforcement. In fact, neither party mentions the appeal waiver in their respective briefs.

II

Fifth Circuit jurisprudence has not been consistent in its treatment of whether or not appeal waivers implicate this court's jurisdiction. We set this issue for review sua sponte to clarify an apparent discrepancy in our case law.

In one line of cases, where the government has sought to enforce defendants' appeal waivers, this court has either explicitly referred to our lack of jurisdiction to hear the case at hand, or granted the government's motion to dismiss the appeal pursuant to the appeal waiver, but without any jurisdictional analysis in either case.⁵ See, e.g., United States v. McKinney, 406 F.3d 744, 746 (5th Cir.2005)(concluding that the defendant's appeal waiver applied to his claim on appeal and dismissing the appeal); United States v. Martinez, 263 F.3d 436, 438 (5th Cir.2001)(finding that the defendant's waiver of his right to appeal deprived the court of jurisdiction); United States v. White, 258 F.3d 374, 380 (5th Cir.2001)(noting that waiver of appeal provisions in plea agreements "are routinely held to deprive appellate courts of jurisdiction to hear appeals of sentencing issues").

In another line of cases, we have not treated appeal waivers as implicating jurisdiction where the government failed to request enforcement of the appeal waiver or explicitly declined to seek enforcement of the appeal waiver. In these cases, we did not raise the issue sua sponte or enforce the waiver where the parties did not mention the waiver in their briefs. Recently, we declared that appeal waivers are not jurisdictional, but did not cite to any authority. United States v. Kennedy, 137 Fed.Appx. 685, 686 (5th Cir.2005). In Kennedy, we did not dismiss the defendant's appeal based on the assumption that the government did not wish that the appeal waiver be enforced because it made no mention of the appeal waiver in its brief. Id. at 686-87. In United States v. Rhodes, "in the absence of published authority dictating otherwise," this court chose not to enforce an appeal waiver where the government explicitly chose not to rely on it. 253 F.3d 800, 804 (5th Cir.2001). Several cases thereafter followed Rhodes. See, e.g., United States v. Alanis-Zuniga, 135 Fed.Appx. 759 (5th Cir.2005); United States v. Saldua, 120 Fed.Appx. 553, 554 (5th Cir.2005); United States v. Trevino, 125 Fed.Appx. 549, n.2 (5th Cir.2005); United States v. Castro-Aguilar, 150 Fed.Appx. 335, 336 (5th Cir. 2005). These cases do not provide analysis supporting the conclusion that appeal waivers do not implicate a court's jurisdiction.

This court's attention to jurisdiction with regard to appeal waivers is misplaced, see, e.g., Martinez, 263 F.3d at 438, United States v. White, 258 F.3d at 380, because such waivers do not deprive us of jurisdiction.⁶ We have jurisdiction to hear Story's appeal pursuant to both 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v. Hahn, 359 F.3d 1315, 1320 (10th Cir.2004). The district court's entry of Story's sentence is a final decision and § 1291 confers subject matter jurisdiction upon this court. See Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963)("`Final judgment in a criminal case . . . means sentence. The sentence is the judgment.'")(quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937)). Further, our jurisdiction to hear Story's appeal of his sentence is conferred by § 3742, which states, "[a] defendant may file notice of appeal . . . if the sentence . . . was imposed in violation of the law [or] was imposed as a result of an incorrect application of the sentencing guidelines. . . ." Both of these alternatives in § 3742 apply to the instant case because Story contends his sentence violated Booker.

Notwithstanding this court's jurisdiction to hear appeals of defendants' sentences pursuant to § 3742, the defendant's statutory right to appeal, also conferred by § 3742, may be waived by defendants. Waiver of statutory...