U.S. v. Yemitan

• Decision Date: 30 November 1995
• Docket Number: D,No. 600,600
• Citation: 70 F.3d 746
• Parties: UNITED STATES of America, Appellee, v. Olanekan YEMITAN, also known as Jimmy, also known as Zimmy, Adrian Hamilton and Carlton Legall, Defendants-Appellants, Jewell Sigmone; Leroy Pantophlet; Derrick Berkeley; Fonte Sample; and Jerry Rodriguez, also known as Jose Behal, Defendants. ockets 95-1352(L), 95-1402 and 95-1432.
• Court: U.S. Court of Appeals — Second Circuit

Page 746

70 F.3d 746

64 USLW 2416

UNITED STATES of America, Appellee, v. Olanekan YEMITAN, also known as Jimmy, also known as Zimmy, Adrian Hamilton and Carlton Legall, Defendants-Appellants,

Jewell Sigmone; Leroy Pantophlet; Derrick Berkeley; Fonte

Sample; and Jerry Rodriguez, also known as Jose

Behal, Defendants.

No. 600, Dockets 95-1352(L), 95-1402 and 95-1432.

United States Court of Appeals, Second Circuit.

Submitted Aug. 22, 1995.

Decided Nov. 30, 1995.

David Wikstrom, New York City; John J. Molloy, West Seneca, NY; John Humann, Buffalo, NY (Federal Public Defender, Buffalo, NY), for Defendants-Appellants.

Thomas S. Duszkiewicz, Buffalo, NY (U.S. Attorney's Office, Western District of New York, Buffalo, New York), for Appellee.

Before: NEWMAN, Chief Judge, JACOBS and PARKER, Circuit Judges.

JACOBS, Circuit Judge:

The defendant has executed a plea agreement in which he and the government undertook to take no appeal from a sentence that falls within a range of 120 to 135 months imprisonment. The sentence imposed was 135 months, and defendant filed an appeal on the ground that the district court failed in its duty under 18 U.S.C. Sec. 3553(c)(1) to adduce reasons for imposing that specific sentence, thereby rendering the sentence illegal and the plea agreement unenforceable. The Government moves to dismiss the appeal, citing the plea agreement. We grant the Government's motion and dismiss the appeal.

BACKGROUND

On June 21, 1994, defendant Carlton Legall was arrested with several others for conspiracy to import heroin into the United States. On March 6, 1995, Legall pleaded guilty pursuant to a written plea agreement to one count of conspiracy to import a controlled substance, an offense which carries a minimum sentence of ten years imprisonment. 21 U.S.C. Secs. 963, 960(b)(1)(A).

In Section II of the plea agreement, the parties agreed that the base offense level for the Guidelines applicable to the offense of The parties further agreed that:

conviction is 36; that a two-level downward adjustment is applicable to reflect defendant's minor role in the offense; and that the government would not oppose a recommendation that the court apply a three-level downward adjustment for acceptance of responsibility. Considering this defendant's criminal history category of I, the parties recorded their understanding (in paragraph 10) that the resulting offense level would be 31, that the sentencing range for imprisonment at that offense level would be 108 to 135 months, but that the defendant would remain subject to the statutory maximum and minimum penalties--ten years to life imprisonment.

[N]either party will appeal a sentence imposed by the Court which falls within the sentencing range set forth in Section II, paragraph 10 above, notwithstanding the fact that the Court may reach that range by a Guidelines analysis different from that set forth in this agreement.

On June 2, 1995, the district court accepted the plea and sentenced the defendant to 135 months of imprisonment, 5 years supervised release, and $50 special assessment. Judgment was entered June 7, 1995. Defendant filed a timely notice of appeal on June 12, 1995. On July 28, 1995, the Government filed this motion to dismiss the appeal.

DISCUSSION

Plea agreements are construed according to contract law principles. United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993). See also Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984) (plea bargain is like any other bargained-for exchange); Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627-28, 52 L.Ed.2d 136 (1977) (plea bargains must be enforced to secure benefits conferred on defendant, prosecution, and public); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971) (bargained-for promise by prosecutor must be fulfilled). In Salcido-Contreras, the defendant argued that the district court's reasons for imposing the sentence contradicted the conclusions set forth in the plea agreement. We held that, once a sentence is imposed that conforms to the parameters of a plea agreement entered into knowingly and voluntarily, the agreement is enforceable:

In no circumstances ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.

Salcido-Contreras, 990 F.2d at 52-53. Similarly, in United States v. Rivera, 971 F.2d 876 (2d Cir.1992), two defendants filed appeals claiming that the sentencing court failed to make certain downward departures based on criminal history and cooperation with the government. After ascertaining that the sentences imposed fell within the range specified in their plea agreements, we held that defendants had waived their right to appeal, without inquiry into the merits of defendants' contentions. Rivera, 971 F.2d at 896.

It is undisputed that Legall entered into his plea agreement knowingly and voluntarily. The agreement explicitly provided that neither party would appeal a sentence which falls within the range of 108 to 135 months imprisonment (subject to the statutory minimum and maximum), and the district court in fact imposed a sentence within this range. Under the rule in Salcido-Contreras, defendant is bound by his undertaking in the plea agreement.

Defendant contends that the plea is unenforceable because the district court's sentence was illegal under 18 U.S.C. Sec. 3553(c)(1). That provision, which applies to the offense of conviction, requires a sentencing court to state the reasons for imposing the particular sentence if the applicable range is wider than 24 months. ¹ See United States v. Sasso, 59 F.3d 341, 352-53 (2d Cir.1995). Although the difference between the mandatory minimum (120 months) and the top of the sentencing range (135 months) is less than 24 months, defendant contends that 18 U.S.C. Sec. 3553(c)(1) refers to the Guidelines range considered without reference to the mandatory minimum (i.e., 108 to 135 months). Defendant argues that since this range does exceed the 24-month span, the court erred in imposing its sentence without a specification of reasons. The evident object of this challenge is to achieve a resentencing to a shorter term of imprisonment. We conclude that the plea agreement forecloses this appeal. Only the dismissal of this appeal will afford the prosecution the benefit of its bargain.

Our dismissal of this appeal is entirely consistent with 18 U.S.C. Sec. 3742. Section 3742(a) enumerates grounds on which "[a] defendant may file a notice of appeal in the district court for review of an otherwise final sentence...." One of these grounds, specified in subsection 3742(a)(1), is that the sentence "was imposed in violation of law." Subsection 3742(c)(1) specifically addresses the appellate rights of a defendant who has executed a plea agreement that includes a specific sentence, and it forecloses appeals under subsections Sec. 3742(a)(3) and (4), "unless the sentence imposed is greater than the sentence set forth in such agreement." Thus read together, these provisions do permit a defendant to appeal a sentence "imposed in violation of law" under Sec. 3742(a)(1), even if that sentence was imposed pursuant to a plea agreement that includes a specific sentence.

We conclude, however, that this right to appeal is not unwaivable under subsection 3742(c)(1), and that this defendant has waived it. If this waiver does not preclude a challenge to the sentence as unlawful, then the covenant not to appeal becomes meaningless and would cease to have value as a bargaining chip in the hands of defendants. Nothing in the language of section 3742 compels such a result. Other courts of appeal have so held, and we agree. United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992) (even assuming district court erred as alleged, knowing and voluntary waiver of right to appeal foreclosed review of sentence conforming to plea agreement); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (defendant cannot circumvent express waiver of right to appeal sentence that falls within range specified in plea agreement by alleging misapplication of Sentencing Guidelines). See also United States v. Smith, 918 F.2d 664, 669 n. 1 (6th Cir.1990) (absence of explicit waiver preserves defendant's right to appeal under section 3742), cert. denied, 498 U.S. 1125, 111 S.Ct. 1088, 112 L.Ed.2d 1192 (1991).

We do not hold that the waiver of appellate rights forecloses appeal in every circumstance. "[A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court." Marin, 961 F.2d at 496. Plea agreements are subject to the public policy constraints that bear upon the enforcement of other kinds of contracts. See United States v. Jacobson, 15 F.3d 19, 22-23 (2d Cir.1994) (refusing to find waiver from arguably unconstitutional use of naturalized status as basis of sentence). At some point, one that is not approached here, an arbitrary practice of sentencing without proferred reasons would amount to an abdication of judicial responsibility subject to mandamus, particularly since one purpose served by the requisite statement of reasons is to facilitate collection of sentencing data, see S.Rep. No. 225, 98th Cong., 1st Sess. 80 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3263. Similarly, a sentence tainted by racial bias could not be supported on contract principles, since neither party can be deemed to have accepted such a risk or be entitled to such a result as a benefit of the bargain. This case does not present such extraordinary circumstances, and we conclude that defendant's waiver of his right to appeal must be...