United States v. Hardman

• Decision Date: 24 September 2014
• Docket Number: No. 13–14626,13–14626
• Citation: 778 F.3d 896
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Terry Tyrone HARDMAN, a.k.a. Terry Hardman, Defendant–Appellant.

778 F.3d 896

UNITED STATES of America, Plaintiff–Appellee

v.Terry Tyrone HARDMAN, a.k.a. Terry Hardman, Defendant–Appellant.

No. 13–14626

United States Court of Appeals, Eleventh Circuit.

Sept. 24, 2014.

Ryan Scott Ferber, Erin Sanders, Suzette A. Smikle, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, Atlanta, GA, for Plaintiff–Appellee.

Larry David Wolfe, L. David Wolfe, PC, Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:10–cr–00505–SCJ–ECS–1.

Before HULL, MARCUS and DUBINA, Circuit Judges.

Opinion

DUBINA, Circuit Judge:

This appeal comes before us on a motion to dismiss based on the appeal waiver contained in Appellant Terry Hardman's plea agreement. Because we conclude that Hardman's appeal waiver does not cover his appeal of the district court's Rule 35(b) sentence modification, we deny the motion.

I. BACKGROUND

In 2011, Hardman pleaded guilty to conspiring to possess five kilograms of cocaine with the intent to distribute it. His plea agreement included a general waiver of appeal.

To the maximum extent permitted by federal law, [Hardman] voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to Title 28, United States Code, Section 2255 ) on any ground, except that [Hardman] may file a direct appeal of an upward departure or an upward variance from the sentencing Guideline range as calculated by the District Court.

(DE 44–1 at 11.) The agreement further provided that a government appeal would release Hardman from his waiver. Hardman signed the plea agreement, verifying that he read and understood it, discussed it with his attorney, and voluntarily agreed to it. His attorney and the Assistant United States Attorney also signed the plea agreement.

During the colloquy at Hardman's plea hearing, the district court specifically addressed the appeal waiver. The court asked Hardman if he understood “that as part of [his] plea agreement,” he was “giving up [his] right to appeal [his] sentence unless there is an upward departure from the Guidelines or an appeal by the government.” (Plea Hearing Transcript at 21.) Hardman told the court he understood and denied that anyone “used any force, threat of force,” or promises other than the plea agreement to induce him to waive his right to appeal. (Plea Hearing Transcript at 21–22.) The court concluded that the plea agreement was knowing and voluntary and accepted his guilty plea.

At a December 2011 sentencing hearing, the district court granted the government's motion for a one-level downward departure based on Hardman's substantial assistance. The court ultimately sentenced Hardman to 235 months' imprisonment, a sentence falling at the bottom of the Guidelines range that the court calculated and below the statutory minimum of 240 months. See 18 U.S.C. § 3553(e) (permitting a sentence below the statutory minimum based on a defendant's substantial assistance). At the close of sentencing, the district court reminded Hardman of his appeal waiver, and he indicated he had no questions about his appellate rights.

In May 2013, the government moved to reduce Hardman's sentence under Federal Rule of Criminal Procedure 35(b), which allows for a postsentencing motion to reduce the sentence of a defendant who provides substantial assistance to the government.¹ The district court granted the government's motion and reduced his sentence from 235 months to 223 months.

Several months later, the government filed a second Rule 35(b) motion. This time the government sought a 35–month reduction, which would bring Hardman's sentence down to 188 months. Hardman supported the government's motion but went further: He asked the district court for an additional 20–month reduction, or a one-level reduction under the Guidelines, that would reduce his sentence to 168 months. The government opposed his efforts, arguing that a 188–month sentence appropriately reflected the degree of his assistance. After a hearing and with the benefit of oral argument, the district court granted the government's motion but declined Hardman's request for further reduction. Hardman's sentence was reduced to 188 months.

Hardman timely appealed the district court's ruling on the second Rule 35(b) motion, and the government moved to dismiss the appeal based on the appeal waiver. Absent extraordinary circumstances, we resolve such motions to dismiss before requiring the government to file an appellee's brief. 11th Cir. R. 31–1(c) ; United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir.1997).

II. DISCUSSION

We review the validity of appeal waivers de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.2008). An appeal waiver is valid only if it was made knowingly and voluntarily. Id. For an appeal waiver to be enforced, “the government must show either that (1) the district court specifically questioned the defendant about the provision during the plea colloquy, or (2) it is manifestly clear from the record that the defendant fully understood the significance of the waiver.” United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir.2001). A valid and enforceable appeal waiver, however, only precludes challenges that fall within its scope. Cf. United States v. Carruth, 528 F.3d 845, 846 (11th Cir.2008) (rejecting the government's argument that the scope of the defendant's appeal waiver in his original plea agreement extended to his later revocation of supervised release).²

Plea agreements, like contracts, should be interpreted consistent with the parties' intent. United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir.2005). The language of a plea agreement should be given its ordinary and natural meaning unless the parties indicate otherwise. See id. at 1334–35. Indeed, in determining the meaning of disputed terms, the court applies an objective standard and eschews both “a hyper-technical reading of the written agreement” and “a rigidly literal approach in the construction of the language.” United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir.2004) (quoting United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir.1990) ) (internal quotation marks omitted). Ambiguous terms are construed against the government. Id. at 1105–06.

Here, consistent with our precedent and Federal Rule of Criminal Procedure 11(b)(1)(N), the district court explicitly discussed the appeal waiver with Hardman at his plea hearing. During this colloquy, the district court verified that he understood that he was “giving up [his] right to appeal [his] sentence unless there is an upward departure from the Guidelines or an appeal by the government” and that no one had coerced him into waiving his right to appeal. (Plea Hearing Transcript at 21–22).

To be sure, Hardman knowingly and voluntarily waived the right to appeal his sentence subject to a limited number of exceptions. Because dissatisfaction with the district court's Rule 35(b) order is not such an exception, the government contends that Hardman's appeal should be dismissed. Hardman responds that the waiver does not bar this appeal because he is not challenging his original sentence but rather the district court's modification of his sentence. The question is thus whether the government has established that Hardman's waiver unambiguously forecloses an appeal from a Rule 35(b) sentence modification.

We begin with the text of the plea agreement. The waiver provides that Hardman “voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding ... on any ground.” (DE 44–1 at 11.) The agreement does not define “sentence” or specify whether its use of “sentence” includes modifications of that sentence. Nor does the Rule 11 colloquy reveal whether “sentence” as used in the appeal waiver extends to sentence modifications.

Indeed, nothing in the record indicates that the parties intended “sentence” to refer to anything other than the judgment that the district court would impose after conducting the sentencing hearing. For example, Hardman's waiver links his conviction with his sentence, barring him from “appeal[ing] his conviction and sentence.” Similarly, the district court's questions during the Rule 11 colloquy focused on the sentence that Hardman would receive following the sentencing hearing. That the waiver and district court made such connections is unsurprising. After all, the ordinary meaning of “sentence” is “[t]he judgment that a court formally pronounces after finding a criminal defendant guilty.” Black's Law Dictionary 1569 (10th ed.2014); see also id. at 1485 (9th ed.2009) (same).

We next turn to the text of Rule 35 and its use of the term “sentence.” The Rule's language implies that when a court grants a Rule 35 motion, it modifies the existing sentence rather than imposes an entirely new sentence. Fed.R.Crim.P. 35 (explaining when a “court may reduce a sentence”); see also 18 U.S.C. § 3582(c)(1)(B) (providing that while courts generally cannot modify a term of imprisonment, they may do so in accordance with Rule 35 ). Given that a Rule 35 order modifies the defendant's existing sentence, one might insist that a sentence-appeal waiver includes a modification that sentence. That reading, however, must be rejected as “rigidly literal” in light of how Rule 35(b) motions are treated.

First, a Rule 35(b) motion triggers “a separate proceeding,” United States v. Moreno, 364 F.3d 1232, 1234 (11th Cir.2004) (per curiam) (quotation marks omitted), though one that is “part of the sentencing process,” United States v. Chavarria–Herrara, 15 F.3d 1033, 1036 (11th Cir.1994). The primary focus of such a proceeding is the substantiality of the defendant's postsentencing assistance to the government.³ See Fed.R.Crim.P....