U.S. v. Tang

• Decision Date: 11 April 2000
• Docket Number: Docket No. 99-1726
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ANGEL TANG, Defendant-Appellant. August Term 1999 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 365

214 F.3d 365 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. ANGEL TANG, Defendant-Appellant.

Docket No. 99-1726

August Term 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 11, 2000

Decided: May 08, 2000

Amended: June 2, 2000

Appeal from the judgment of the United States District Court for the Southern District of New York (Thomas P. Griesa, then-Chief Judge), imposing sentence after a guilty plea and rejecting safety-valve reduction under 18 U.S.C. § 3553(f). Government moves to dismiss appeal because of appellate waiver provision of plea agreement.

Motion to dismiss appeal denied; judgment affirmed.

Howard L. Jacobs, New York, N.Y., for defendant-appellant.

Meir Feder, Asst. U.S. Atty., New York, N.Y. (Mary Jo White, U.S. Atty., Baruch Weiss, Asst. U.S. Atty., New York, N.Y., on the brief), for appellee.

Before: NEWMAN, KEARSE, and KATZMANN, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal in a criminal case concerns the validity of a waiver of appeal and the availability of the so-called "safety valve" provision, 18 U.S.C. § 3553(f), which exempts certain narcotics offenders from mandatory minimum sentences. It also implicates the question of what, if any, advice concerning appellate rights is appropriate when such rights have been fully or partially waived. Angel Tang appeals from the judgment of the United States District Court for the Southern District of New York (Thomas P. Griesa, then-Chief Judge), rejecting use of the safety valve because the defendant, claiming concern for the safety of his fiancee and family, refused to provide the Government with information concerning his offense. The Government moves to dismiss the appeal, claiming that Tang waived his appellate rights. We conclude that Tang did not waive his right to appeal the denial of the safety-valve adjustment, but that this adjustment was properly denied. We therefore deny the motion to dismiss the appeal and affirm the District Court's judgment.

Background

Offense conduct. Tang acted as a representative of a Hong Kong-based narcotics organization operating in the Chinatown section of New York City. In late May and early June 1998, Tang conspired to acquire about 700 grams of heroin on behalf of the organization.

Plea Agreement. At a March 31, 1999, meeting, Tang and his counsel met with an Assistant United States Attorney to discuss a plea agreement. Facing a mandatory minimum sentence of five years, Tang sought the benefit of the safety-valve provision of section 3553(f), which exempts from mandatory minimum sentencing provisions defendants who meet specified criteria. One criterion is that the defendant "has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553(f)(5). To elicit such information, the Government sought a "safety valve proffer." Tang described some of his own conduct, but refused to provide information about members of the conspiracy in Hong Kong.

On April 5, 1999, Tang, his lawyer, and the prosecutor executed a written plea agreement, contemplating a guilty plea to one count of a two-count indictment. In paragraph 7 of the agreement, Tang agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range."

The following provisions bear on the meaning of "the Stipulated Guidelines Range." Paragraph 1 specified that Tang's base offense level under the Sentencing Guidelines was 28, paragraph 2 contemplated a three-level reduction for acceptance of responsibility, and paragraph 3 specified the adjusted offense level as 25. The critical provision, paragraph 6, then provided:

Based upon the calculations set forth above, the defendant's Sentencing Guidelines range is 57 to 71 months. The charge [to which Tang pled guilty] carries a statutory minimum term of 60 months. Accordingly, absent relief from the statutory minimum sentence, the Guidelines range is 60 to 71 months (the "Stipulated Guidelines Range") pursuant to U.S.S.G. § 5G1.1(b).

Plea Agreement ¶ 6 (emphasis added).

Paragraph 7 provided that "if the defendant does meet the criteria set forth in [18 U.S.C. § 3553(f)], the parties agree that the defendant's adjusted sentencing range would be 46 to 57 months." Id. ¶ 7. This range was based on an offense level of 23--the adjusted offense level of 25 reduced by two more levels for a defendant eligible for the safety valve provision. See U.S.S.G. § 2D1.1(b)(6).

Plea allocution. On the same day the plea agreement was signed, Tang pled guilty to one count of conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. §846. Judge Griesa meticulously complied with all of the requirements of Rule 11(c) of the Federal Rules of Criminal Procedure as it existed on the date of the plea, April 5, 1999. However, he did not ascertain the defendant's understanding of the provision of the plea agreement waiving the right to appeal. That inquiry was then required by our case law, see United States v. Chen, 127 F.3d 286, 289-90 (2d Cir. 1997); United States v. Ready, 82 F.3d 551, 556-57 (2d Cir. 1996), and is now explicitly required by Rule 11(c)(6), which became effective December 1, 1999. See Fed. R. Crim. P. 11 advisory committee's note (1999 amendment). The only reference to the purported waiver of appeal was the prosecutor's statement: "I also put on the record that the plea agreement contains an agreement not to appeal any sentence that is within or below the stipulated guidelines range."

Sentencing. The pre-sentence report stated that Tang "appear[ed] to meet" the requirements of the safety valve. The Government objected to this statement. Judge Griesa permitted the parties to make written submissions on the issue.

On November 22, 1999, a sentencing hearing was held. Tang's counsel stated that Tang continued to maintain that he would not answer questions about other people in Hong Kong because he feared for the safety of his fiancee and family in Hong Kong. Judge Griesa rejected use of the safety valve, stating:

I find that in view of the fact that the defendant has not fully disclosed all the information known to him about the crime, the safety valve provisions cannot be applied, and, consequently, the minimum of five years in prison must be given effect.

The Court imposed a sentence of five years of imprisonment followed by four years of supervised release. Prior to imposing sentence, the Court had stated, with respect to an appeal:

Well, my view of it is that under the law the safety valve provision really cannot be applied. It is possible that if I either -- whatever way I went, there would be an appealable question. I think if I did apply the safety valve, one must count on the government appealing. If I don't apply the safety valve, whether the defendant appeals, I don't know. The difference is not as huge where you have a five-year minimum as it would be as if you had a ten-year minimum, but it is still a difference.

After imposing sentence, the Court did not inform the defendant as to any right of appeal.

Discussion

I. Waiver of Appeal

Scope of the alleged waiver. The Government has moved to dismiss the appeal, contending that under the plea agreement, Tang waived his right to appeal the 60-month sentence because it was within the "Stipulated Guidelines Range." The Government asserts that the plea agreement "expressly defined the 60 to 71 month range as the 'Stipulated Guidelines Range.'" Brief for Appellee at 4. That quotation omits an important qualifying phrase. The definitional sentence of the plea agreement states: "Accordingly, absent relief from the statutory minimum sentence, the Guidelines range is 60 to 71 months (the 'Stipulated Guidelines Range') pursuant to U.S.S.G. § 5G1.1(b)." Plea Agreement ¶ 6 (emphasis added). We think the most natural reading of this sentence is that the Stipulated Guidelines Range is 60 to 71 months only if the safety valve does not apply to afford relief from the statutory minimum sentence, and that the Stipulated Guidelines Range is something else, presumably less, if the safety valve affords such relief. This common sense reading is reinforced by the very next paragraph, which computes a sentencing range of 46 to 57 months if the safety valve applies. The Government's attempt to redefine the Stipulated Guidelines Range without the qualifying reference to the safety valve is totally lacking in merit.

Even if the straightforward meaning of the alleged waiver were not so apparent, we would not indulge the Government in its strained waiver argument. We have previously noted, specifically in the context of claimed waivers of appellate rights, that plea agreements are to be applied "narrowly," United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996), and construed "strictly against the Government," id. at 559. See United States v. Yemitan, 70 F.3d 746, 750 (2d Cir. 1995) (Newman, then-C.J., dissenting) ("[A]ll those negotiating appeal waiver provisions in plea agreements should be careful to use language that carries out their precise intentions.").

Awareness of the alleged waiver. The alleged waiver would likely be unenforceable in any event because of the District Court's failure to ascertain that the waiver was fully understood and voluntary. See Chen, 127 F.3d at 289-90; Ready, 82 F.3d at 556-57 ("We agree that a waiver of the right to appeal should only be enforced by an appellate court if the record 'clearly demonstrates' that the waiver was both knowing ... and voluntary.") (quoting United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995)). This requirement is now expressly imposed by Fed. R. Crim. P. 11(c)(6).

The alleged appeal waiver was not explicitly called to the defendant's attention at the plea...