U.S. v. Wilken

• Decision Date: 21 August 2007
• Docket Number: No. 06-4042.,06-4042.
• Citation: 498 F.3d 1160
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Travis L. WILKEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

498 F.3d 1160

UNITED STATES of America, Plaintiff-Appellee, v. Travis L. WILKEN, Defendant-Appellant.

No. 06-4042.

United States Court of Appeals, Tenth Circuit.

August 21, 2007.

Submitted on the briefs:^*

Sharon Preston, Salt Lake City, UT, for Defendant-Appellant.

Brett L. Tolman, United States Attorney, and Diana Hagan, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Travis L. Wilken pled guilty to the crime of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Mr. Wilken now appeals his sentence of 235 months' imprisonment on grounds that the district court incorrectly calculated the United States Sentencing Guidelines range (the "Guidelines range") for his offense and that the length of the sentence imposed was unreasonable.

We first hold that Mr. Wilken did not waive his right to appeal his sentence, despite language to the contrary in his plea agreement, because statements made by the district court during his plea colloquy created ambiguity as to whether his waiver was knowing and voluntary. However, upon considering the merits of Mr. Wilken's appeal, we conclude that he has failed to demonstrate that his sentence was unreasonable and that any error in calculating the Guidelines range for his offense was harmless. We therefore AFFIRM Mr. Wilken's sentence.

I. BACKGROUND

A. Facts

According to uncontested facts from the presentence report ("PSR") prepared by the United States Probation Office in this case, a confidential informant ("CI") working for the Drug Enforcement Administration ("DEA") arranged to sell a pound of methamphetamine to Mr. Wilken on the evening of September 27, 2004. Utah Highway Patrol ("UHP") troopers stopped Mr. Wilken's pickup truck en route to the CI's residence to consummate the sale. Mr. Wilken admits that, during this stop, he drove away from the troopers as they were asking for his identification; however, he disputes the government's allegation that this flight occurred "at a high rate of speed with one of the troopers still halfway in the driver's door." Later that evening, UHP troopers located Mr. Wilken walking down Main Street in Woods Cross, Utah, and placed him under arrest. The troopers found $11,200 in currency, a digital scale, and 15.9 grams of methamphetamine in his possession, and Mr. Wilken subsequently admitted that "at least some of that drug would have been distributed, sold, or shared with friends and/or associates had it not been seized."

B. The Plea Agreement and Waiver of Appeal

Mr. Wilken was charged with one count of possessing with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, and one count of possessing with intent to distribute 5 grams or more of actual methamphetamine, both in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to a plea agreement reached with the government, Mr. Wilken pled guilty only to the latter count, and the government moved to dismiss the former count at sentencing. The plea agreement also contained a statement of Mr. Wilken's right to appeal his sentence and a purported waiver of that right:

8. I know there is no appellate review of any lawful sentence imposed under a plea of guilty. I also know I may appeal the sentence imposed upon me in this case only if the sentence is imposed in violation of law or, in light of the factors listed in 18 U.S.C. § 3553(a), the sentence is unreasonable....

10. Fully understanding my limited right to appeal my sentence, as explained above, and in consideration of the concessions and/or commitments made by the United States in this plea agreement, I knowingly, voluntarily and expressly waive my right to appeal any sentence imposed upon me, and the manner in which the sentence is determined, on any of the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, except I do not waive my right to appeal (1) a sentence above the maximum penalty provided in the statute of conviction as set forth in paragraph 2 above.

At a change of plea hearing, the court ascertained that Mr. Wilken had reviewed the written plea agreement. However, in asking Mr. Wilken whether he understood the waiver of appeal contained in that agreement, the court described the waiver in significantly different terms than appeared in the written agreement:

THE COURT: When you plead guilty you waive the right to appeal any lawful sentence. So unless a sentence is imposed above the statutory maximum, which in this case is life, or if it's in violation of the factors listed in the statute, you won't have a right of appeal. Do you understand that?

THE WITNESS [Mr. Wilken]: I do.

THE COURT: Unless it falls into those other categories, you won't be able to appeal the sentence....

(Emphasis added). Later during the same hearing, the court reiterated the same point in more general terms:

THE COURT: Also you're agreeing to waive any appeal or collateral attacks as we discussed earlier and as outlined in this agreement; is that true?

THE WITNESS: Yes.

(Emphasis added). The court then confirmed that Mr. Wilken voluntarily agreed to plead guilty and had been "able to consult with [his] attorney about the decision to plead guilty and about this agreement," accepted Mr. Wilken's guilty plea, and directed him to sign the agreement.

C. The PSR

Mr. Wilken's PSR assigned him a base offense level of 32 pursuant to U.S.S.G. § 2D1.1(c)(4), based on the quantity of methamphetamine and cash in his possession at the time of his arrest. The PSR adjusted this upwards by 2 levels under U.S.S.G. § 3C1.2 for obstruction of justice, citing the government's allegation that, during the traffic stop prior to his arrest, Mr. Wilken "sped off in his vehicle with the UHP trooper standing half-way in the driver's door" and subsequently "engaged in a high speed pursuit with police." The offense level was further increased under the "career offender" provision at U.S.S.G. § 4B1.1, which prescribes an offense level of 37 where the statutory maximum sentence for the offense at issue is life imprisonment.¹ Finally, the PSR reduced the offense level by 3 levels for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, producing a total offense level of 34. The PSR also noted that Mr. Wilken's criminal history would normally be in category V based on his prior convictions; however, because he met the criteria for a career offender, U.S.S.G. § 4B1.1(b) categorically prescribed a criminal history category of VI.

Thus, based on a total offense level of 34 and a criminal history category of VI, the Guideline range for Mr. Wilken's sentence as calculated in the PSR was 262 to 327 months. The PSR also listed the statutory limitations on his sentence, which provide for a mandatory minimum sentence of 10 years and a maximum of life imprisonment.²

Prior to sentencing, Mr. Wilken filed several written objections to the PSR and requested a sentence below its calculated Guideline range. He first argued that the PSR erred by counting two of his prior convictions, described in paragraphs 38 and 39 of the PSR, separately for purposes of calculating his criminal history score; according to Mr. Wilken, these convictions resulted from "related" cases (as defined in U.S.S.G. § 4A1.2), and therefore should have counted as only one point on his criminal history score. Mr. Wilken conceded, however, that even so construed, his criminal history still qualified him for career offender status under U.S.S.G. § 4B1.1.

Second, Mr. Wilken argued that the PSR erred in applying the two-level enhancement for reckless endangerment pursuant to U.S.S.G. § 3C1.2 because there was insufficient proof of the government's allegation that he drove away from the traffic stop at high speed with an officer halfway inside the doorway of his vehicle. While Mr. Wilken admitted that he drove away in an attempt to evade the police, he denied that he did so at high speed or that he endangered officers or anyone else, conduct which he argued fails to warrant enhancement under § 3C1.2. Mr. Wilken claimed that he sought as evidence videotapes of the traffic stop from the Highway Patrol vehicles involved, but that the government informed him that the tapes had been lost.

Mr. Wilken also argued that one of his prior convictions, a misdemeanor conviction for possession of marijuana and drug paraphernalia, should not have been counted in his criminal history score because he was not represented by counsel during court proceedings and pled guilty "just to get the case behind him." Thus, he contended, a criminal history score which included two points for this conviction would "substantially over-represent[] the seriousness of [his] criminal history."

Finally, Mr. Wilken argued that the PSR's application of U.S.S.G. § 4B1.1's career offender provision was inappropriate in his case because his prior controlled substance offenses were relatively minor and mostly confined to a one-year period of time. He also noted more generally that the United States Sentencing Commission has itself been critical of the career offender provision's efficacy when applied to non-violent drug offenders. Thus, he requested that the sentencing court decline to apply career offender status and instead impose a sentence of ten years, the mandatory minimum statutory sentence available for his present offense.

D. Sentencing

At sentencing, Mr. Wilken verbally reasserted his argument for a below-Guidelines sentence of ten years, and the court acknowledged his written objections to the PSR. The court accepted Mr. Wilken's argument that his criminal history score overstated his actual criminal history slightly and accordingly decreased his criminal history score by one category, but declined to depart or vary from the remainder of the...