U.S. v. Woolley

• Decision Date: 18 August 1997
• Docket Number: No. 96-1806,96-1806
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcia G. WOOLLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 627

123 F.3d 627

UNITED STATES of America, Plaintiff-Appellee, v. Marcia G. WOOLLEY, Defendant-Appellant.

No. 96-1806.

United States Court of Appeals, Seventh Circuit.

Argued April 22, 1997.

Decided Aug. 18, 1997.

Jeffrey B. Lang (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

Steven Shobat (argued), Chicago, IL, for Defendant-Appellant.

Before COFFEY, KANNE and ILANA DIAMOND ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-appellant Marcia Woolley was charged with one count of aiding and abetting a felon in obtaining a firearm, in violation of 18 U.S.C. §§ 2, 922(g)(1). The indictment charged that, on or about January 21, 1995, Woolley assisted her husband Martin, a convicted felon, in purchasing a handgun in Henry County, Illinois. Thereafter, on November 3, 1995, Woolley, represented by counsel, pled guilty to the charge in the indictment pursuant to a written plea agreement. Under the terms of the plea agreement, the Government reserved the right to request, and in fact did request, an upward departure in Woolley's sentence. With an upward departure, Woolley could have received up to the statutory maximum of 120 months. At the sentencing hearing, the judge granted the Government's request and departed upward, sentencing the defendant to a term of ninety-six months.

The plea agreement also contained a sentence appeal waiver, as well as a waiver of rights under 42 U.S.C. § 2255. Notwithstanding this waiver, Woolley has filed an appeal, in which she challenges the upward departure and argues that she received ineffective assistance of counsel. The Government in response filed a motion to dismiss the appeal based on the sentence appeal waiver. ¹ We dismiss the appeal.

I. FACTUAL BACKGROUND ²

Woolley and her husband Martin owned a tattoo shop in Kewanee, Illinois. On January 20, 1995, Marcia asked James Rodgers (Rodgers), a friend of hers, if he would purchase a handgun for the Woolleys, stating that she and Martin needed a gun for protection both at the tattoo shop and at home. ³ As a matter of fact, Marcia Woolley admitted in a taped discussion with Illinois authorities that the real reason the Woolleys wanted to purchase a gun was to facilitate their purchase and transportation of drugs from Florida to Illinois for resale. Rodgers agreed to purchase the handgun for the Woolleys, and the three of them went to a local gun shop the next day. Martin Woolley picked out a handgun and ammunition, and Marcia paid for them with cash.

A few weeks later, on February 20, 1995, Marcia and Martin spent a large portion of the day drinking at "Phylly's Cue and Brew," a bar located in Kewanee. At approximately 10:00 p.m., after all of the patrons had departed except for the Woolleys and two employees, a bartender and a waitress, Martin, who was carrying the handgun in his pants, opened fire, shooting and killing both the bartender and waitress. Thereafter, Martin went behind the bar, emptied the cash register, took two bags of money from a cabinet beneath the bar, exited the tavern and returned with his wife to their Kewanee home. Martin hid the money in a wall in their house, and dropped the gun in a freezer located in a garage a few houses away. Early the next morning, the police arrived and inquired of both Martin and Marcia whether they knew anything about the murders, and both denied any knowledge. Later that afternoon, Marcia and Martin were taken to the Kewanee Police Department for questioning, at which time Marcia stated that Martin had committed the murders. She denied knowing in advance of his plans to rob Phylly's and fatally shoot the two people. Martin later confessed to the murders, and Marcia admitted, in a taped statement, that she knew at the time they purchased the gun that Martin was a convicted felon and was thus barred from legally owning a handgun.

Martin Woolley was charged with and convicted of two counts of murder for the killing of the bartender and waitress. He was sentenced to death for the double homicide. ⁴ Marcia Woolley was charged by Illinois authorities with obstruction of justice, based on her false statements to Kewanee police officers concerning her alleged lack of knowledge about the killings. She pled guilty, served approximately three months of an eighteen-month sentence, and was released from custody, only to be re-arrested for the crime referred to herein. ⁵

Assisted by counsel, Marcia entered into a written plea agreement which specifically provided in part that the Government would have the right to seek an upward departure in Marcia's sentence, ⁶ and also allowed Woolley to seek a downward departure. The plea agreement also contained the aforementioned waiver of Marcia's right to appeal her sentence. The appeal waiver read as follows:

A. The defendant fully understands that Section 3742 of Title 18 of the United States Code provides for appeal by a defendant of a sentence under certain circumstances, and further that she may give up or waive this right to appeal her sentence as a term of this plea agreement.

B. Knowing this, the defendant hereby waives any and all rights conferred by 18 U.S.C. § 3742 to appeal her sentence on any grounds, including the manner in which the court applies the United States Sentencing Guidelines and Policy Statements in determining her sentence.

C. The defendant further fully understands that Section 2255 of Title 28 of the United States Code and related laws provide for the challenge by a defendant of her conviction and sentence under certain circumstances, and further that she may give up or waive this right to challenge her conviction and sentence as a term of this plea agreement.

D. Knowing this, the defendant hereby waives any and all rights conferred by 28 U.S.C. § 2255 and related laws to challenge her conviction and sentence on any grounds in any post-conviction proceedings.

App.B, p. 10.

The probation officer in the PSR calculated Woolley's Adjusted Offense Level at fifteen and found her Criminal History Category to be III; thus, her Guideline sentence range was twenty-four to thirty months. At sentencing, the Government moved for an upward departure from the Guideline sentence range to the statutory maximum of 120 months, based on § 5K2.1 of the Guidelines, which states that an upward departure is appropriate if death results from the commission of the offense. The defendant's counsel sought a downward departure, arguing that Marcia Woolley had been coerced by Martin into assisting him in obtaining the handgun. The trial judge, after reviewing the PSR and hearing the evidence presented at the sentencing hearing, denied the defendant's request for a downward departure and agreed with the Government that an upward departure was in order. The judge sentenced Woolley to a term of ninety-six months.

II. ISSUES

Woolley's appellate brief raises five issues challenging her sentence (the plea colloquy whereby the district court accepted her guilty plea) and alleging that her trial counsel provided ineffective assistance. Initially, we address the Government's motion to dismiss this appeal based upon the waiver of appeal rights Woolley agreed to and signed as part of her written plea agreement. Since we hold that the appeal waiver is valid, there is no need to address the merits of Woolley's sentencing claims.

III. DISCUSSION

The Government has moved to dismiss Woolley's appeal, arguing that, as part of her written plea agreement, she waived her right to appeal. It is well-settled in this Circuit, as well as in virtually every circuit that has considered the question, ⁷ that defendants may waive their right to appeal as part of a written plea agreement, and we have consistently upheld valid appeal waivers and dismissed the appeals taken in contravention. See United States v. Feichtinger, 105 F.3d 1188 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2467, 138 L.Ed.2d 223 (1997); United States v. Ogden, 102 F.3d 887 (7th Cir.1996); United States v. Wenger, 58 F.3d 280 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 349, 133 L.Ed.2d 245 (1995); United States v. Schmidt, 47 F.3d 188 (7th Cir.1995). ⁸ Indeed, "the right to appeal is a statutory right, and like other rights--even constitutional rights--which a defendant may waive, it can be waived in a plea agreement." Feichtinger, 105 F.3d at 1190. For an appeal waiver to be valid, it "must be express and unambiguous," United States v. Hendrickson, 22 F.3d 170, 174 (7th Cir.1994), and the record must clearly demonstrate that it was "made knowingly and voluntarily." United States v. Agee, 83 F.3d 882, 885 (7th Cir.1996) (citing Wenger); Schmidt, 47 F.3d at 190. Finally, a waiver of the right to appeal does not completely foreclose review of a sentence under all circumstances. As we observed in Schmidt, notwithstanding a valid appeal waiver, "a defendant could appeal his sentence if the trial court relied on a constitutionally impermissible factor[.]" 47 F.3d at 190; see also Feichtinger, 105 F.3d at 1190. To determine whether the defendant's appeal waiver is valid, we look to the content and the language of the plea agreement itself and refer to the colloquy between the defendant and the judge if necessary. As we stated in Wenger:

Most waivers are effective when set out in writing and signed[.] ... Waivers of appeal must stand or fall with the agreements of which they are a part. If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal.

58 F.3d at 282; see also Schmidt, 47 F.3d at 190. Woolley does not dispute that she signed the written plea agreement containing the appeal waiver; nor does she claim that she was illiterate or was otherwise unable to read and understand the agreement's terms. Rather, she argues that she did not enter into it voluntarily because her...