U.S. v. Woods

• Decision Date: 09 September 2009
• Docket Number: No. 08-2090.,No. 08-1778.,No. 08-2487.,08-1778.,08-2487.,08-2090.
• Citation: 581 F.3d 531
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clint WOODS, Steve Bennett and David McDonald, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

581 F.3d 531

UNITED STATES of America, Plaintiff-Appellee, v. Clint WOODS, Steve Bennett and David McDonald, Defendants-Appellants.

No. 08-1778.

No. 08-2487.

No. 08-2090.

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2008.

Decided September 9, 2009.

William T. Grimmer, Attorney (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

H. Jay Stevens, Attorney (argued), Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendants-Appellants.

Steven Bennett, Atlanta, GA, pro se.

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This is a consolidated appeal of the denial of three defendants' motions to modify their sentences pursuant to 18 U.S.C. § 3582(c)(2). All three defendants were indicted, along with others, on multiple charges in a drug trafficking ring and entered into plea agreements that included appellate waivers. The government maintains we should dismiss the appeals because the waiver bars our review. Because we conclude that § 3582(c)(2) motions do not fall within the waiver's scope, we hold that the waivers do not bar the defendants' appeals of the denials of their § 3582(c)(2) motions. However, because we conclude that the district court did not err in denying the motions, we affirm.

I. BACKGROUND

Clint Woods pled guilty to conspiracy with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 on May 24, 2000. On December 8, 2000, the court sentenced him to 235 months' imprisonment and three years' supervised release. Steve Bennett pled guilty to conspiracy with intent to distribute crack cocaine in violation of § 846 on December 17, 2001. On April 26, 2002, the court sentenced Bennett to 210 months' imprisonment and five years' supervised release.

The government moved to reduce Woods's and Bennett's terms of imprisonment, and the court granted the motion on September 3, 2003, reducing each of their sentences to 168 months. Woods and Bennett had already received other sentence reductions, and additional counts against them had been dismissed in exchange for their cooperation with the government.

David McDonald pled guilty to conspiracy with intent to distribute crack cocaine in violation of § 846 on August 3, 2000. On December 19, 2000, the court sentenced McDonald to 235 months' imprisonment and five years' supervised release. Upon the government's motion, the court reduced his sentence to 188 months' incarceration in June 2003.

The presentence report ("PSR") for each defendant concluded that each was responsible for distributing more than 1.5 kilograms of cocaine base or more than 150 kilograms of cocaine powder. The court adopted the PSR report and made no other specific findings as to the drug quantities attributable to each defendant. Each PSR explained that from 1992 to 1998, the entire conspiracy distributed about 345 kilograms of crack and about 230 kilograms of powder, but it did not attribute a specific amount to Woods, Bennett, or McDonald other than more than 1.5 kilograms of crack.

The United States Sentencing Commission amended the guidelines effective on November 1, 2007, lowering the penalties for most crack cocaine offenses by two levels to ameliorate the 100 to 1 drug-quantity ratio between crack cocaine and powder cocaine as found in § 2D1.1 of the United States Sentencing Guidelines. See U.S.S.G. app. C, amend. 706 (2007). The Commission made some technical changes to § 2D1.1 with Amendment 711. U.S.S.G. app. C, amend. 711 (2007). The Commission made the amendments retroactive to cases sentenced before the amendments' enactments. Because the court sentenced Woods, Bennett, and McDonald before enactment of the amendments, they each filed § 3582(c)(2) motions.

The district court denied Woods's motion because it concluded that Amendments 706 and 711 to the guidelines do not apply retroactively to a defendant who possessed with intent to distribute other drugs in addition to crack. The district court denied Bennett's and McDonald's motions because it concluded that each were accountable for more than 4.5 kilograms of cocaine base, and the amendments did not change the base offense level when quantities that great are involved. Woods, Bennett, and McDonald appeal the denial of their § 3582(c)(2) motions.¹

II. ANALYSIS

A. The defendants did not waive their right to appeal the denial of their § 3582(c)(2) motions.²

Before potentially reaching the merits of the defendants' arguments that the court erred in denying their § 3582(c)(2) motions, we must determine whether to dismiss these appeals because each defendant entered into a plea agreement containing the following waiver:

I further expressly waive my right to appeal my sentence on any ground, including any appeal right conferred by Title 18, United States Code 3742. I also agree not to contest my sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to a proceeding under Title 28, United States Code § 2255.

The defendants maintain that a § 3582(c)(2)³ motion is not an attack on the original sentence, but rather a request to modify an originally correct sentence based on amendments to the sentencing guidelines. Therefore, they maintain the plea did not bar their motion or this appeal. The government contends we must dismiss the appeal because the waiver bars any manner of appellate review. At oral argument, the government acknowledged that it did not assert waiver in the district court in response to any of the defendants' § 3582(c)(2) motions. The government explained that the United States Attorney's Office for the Northern District of Indiana had a policy allowing prosecutors to forego enforcement of sentence-challenging waivers in § 3582(c)(2) motions before the district court, but that it asserts waiver if a defendant attempts to appeal the district court's decision.

We review the enforceability of a waiver agreement de novo. Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999). It is well-settled that appellate waivers in plea agreements are generally enforceable. United States v. Emerson, 349 F.3d 986, 988 (7th Cir.2003); see United States v. Nave, 302 F.3d 719, 720-21 (7th Cir.2002). "But [an appellate waiver] does not, in every instance, foreclose review." United States v. Mason, 343 F.3d 893, 894 (7th Cir.2003) (internal quotation marks and citation omitted). For the waiver to be enforceable, the disputed appeal must fall within its scope. See United States v. Vega, 241 F.3d 910, 912 (7th Cir.2001) (per curiam). We will enforce an appellate waiver if its terms are "express and unambiguous," see United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997), and the record shows that the defendant "`knowingly and voluntarily'" entered into the agreement. United States v. Jemison, 237 F.3d 911, 917 (7th Cir.2001) (quoting Jones v. United States, 167 F.3d 1142, 1144 (7th Cir.1999)).

To determine if a defendant knew and understood the plea agreement, we must examine the language of the plea agreement itself and also look to the plea colloquy between the defendant and the judge. Woolley, 123 F.3d at 632; see also United States v. Sura, 511 F.3d 654, 661 (7th Cir.2007) (the district court must inform the defendant of an appellate waiver during the Rule 11 colloquy). A plea agreement is a type of contract subject to contract law principles, but limited by constitutional considerations. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir.2005). We interpret the terms of the agreement according to the parties' reasonable expectations and construe any ambiguities against the drafter—the government—and in favor of the defendant. See Vega, 241 F.3d at 912; accord United States v. Stearns, 479 F.3d 175, 178 (2d Cir.2007); United States v. Speelman, 431 F.3d 1226, 1231 (9th Cir.2005).

The waiver at issue does not include an express provision barring the filing of § 3582(c)(2) motions, as some plea agreements do. See, e.g., Stearns, 479 F.3d at 177; United States v. Gordon, 480 F.3d 1205, 1208 (10th Cir.2007). Therefore, we must interpret the terms of the agreement to decide if this appeal falls within the scope of the waiver. See Vega, 241 F.3d at 912 (disputed appeal fell outside scope of appellate waiver because parties expected the term "sentence" in the waiver to include only the events of the sentencing hearing and not a later attempt by the court to amend the sentence).

Two of our sister circuits have addressed appellate right waivers following the denial of a § 3582(c)(2) motion, and both have concluded that the waivers at issue did not bar the appeals. In United States v. Chavez-Salais, the Tenth Circuit interpreted a broadly-worded waiver and concluded that appealing the denial of a § 3582(c)(2) motion did not fall within the scope of the waiver. 337 F.3d 1170 (10th Cir.2003). The language of the waiver in Chavez-Salais was similar to the one at issue here, except in one aspect—that waiver barred the defendant from challenging his sentence in any "collateral attack" rather than in any "post-conviction proceeding" as in our case.⁴ Id. at 1172. The court determined that § 3582(c)(2) motions were not within the conventional understanding of collateral attacks because § 3582(c)(2) motions ask a court to modify a sentence pursuant to changes in the guidelines, but do not "complain about the substance of, or proceedings that determined, a defendant's original sentence or conviction" as other collateral attacks do. Id.

In United States v. Leniear, the Ninth Circuit also rejected the government's argument that the defendant's appellate waiver precluded the court's review of the § 3582(c)(2) motion denial. 574 F.3d 668, 672 (9th Cir.2009). The plea agreement in that case contained a waiver of the defendant's right to appeal the sentence pursuant to § 3742 and his right to collaterally attack his sentence.⁵ Id. The district court denied...