United States v. Hunt, 15-3084

Decision Date20 December 2016
Docket NumberNo. 15-3084,15-3084
Citation843 F.3d 1022
Parties United States of America, Appellee v. Devon Cleveland Hunt, also known as Man, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Edward C. Sussman, Washington, DC, appointed by the court, argued the cause and filed the briefs for the appellant.

Jason B. Feldman, Assistant United States Attorney, argued the cause for the appellee. Elizabeth Trosman and George P. Eliopoulos, Assistant United States Attorneys, were with him on the brief.

Before: Henderson and Pillard, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

Devon Hunt has a long history of drug dealing. Over the years he has done much of his business at Potomac Gardens, a housing project in southeast Washington, D.C. In this case, he conspired to distribute heroin from there. He pleaded guilty pursuant to a plea agreement in which he anticipatorily waived his right to appeal certain aspects of his sentence. The district court sentenced him to 62 months of imprisonment, to be followed by five years of supervised release. Without saying why, the court conditioned Hunt's supervised release on his staying away from Potomac Gardens. Hunt objected to the condition but not to the lack of explanation.

Hunt now appeals, challenging both the stay-away condition and the district court's failure to explain it. The government argues that Hunt's appeal waiver bars his claims. We disagree. The waiver contains ambiguities that the court compounded during the plea colloquy. We construe the ambiguities against the government, which drafted the plea agreement and provided no clarification during the colloquy. We nevertheless uphold the stay-away condition because Hunt's claims fail on the merits. First, because he did not object to the court's failure to explain the condition, we review his procedural claim for plain error only. To the extent there was a procedural error, it was not plain and did not affect his substantial rights. Second, as a substantive matter, the condition is well within the court's wide discretion. It will sensibly keep Hunt away from a neighborhood in which he has conducted numerous drug deals. And because he neither lives in the neighborhood nor alleges that he has family there, the condition does not unduly restrict his liberty.

I. BACKGROUND
A. HUNT'S OFFENSES, PAST AND PRESENT

Hunt has ties with Potomac Gardens but they are not to his credit. In 1987, he conducted at least three heroin deals there. In 1990, he assaulted police officers there. In 1994, he again participated in a series of heroin sales there. In the process, he threatened security guards and told a young child to keep an eye out for police. After he pleaded guilty to conspiracy based on the 1994 conduct, a long jail term kept him away from Potomac Gardens until at least 2006. In June 2009, the D.C. Housing Authority barred him from the complex. He was not deterred: narcotics officers found him at Potomac Gardens just a few months later.

From late 2012 to early 2013, while residing elsewhere, Hunt once again used Potomac Gardens as a base of operations for drug dealing. He repeatedly sold heroin from there through a middleman to a confidential source. The deals involved a total of more than 100 grams of heroin. Based on those deals, the government charged him here with conspiring to distribute and to possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846. It also charged him with six related drug offenses.

B. THE GUILTY PLEA

Hunt was arrested and agreed to plead guilty to the conspiracy count in exchange for the government's dismissal of the other counts. The parties stipulated to an imprisonment range of 60 to 65 months and a five-year term of supervised release. Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the parties further agreed that the sentencing range and five-year term of supervised release would bind the district court if it accepted the plea agreement. Finally, Hunt agreed to waive some of his appellate rights with respect to his sentence. In pertinent part, the appeal waiver stated:

[Hunt] understands that federal law, specifically 18 U.S.C. § 3742, affords defendants the right to appeal their sentences in certain circumstances. [Hunt] agrees to waive the right to appeal the sentence in this case, including any term of imprisonment, fine, forfeiture, award of restitution, term of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined, except to the extent the Court sentences [Hunt] above the statutory maximum or guidelines range determined by the Court or [Hunt] claims that [he] received ineffective assistance of counsel, in which case [he] would have the right to appeal the illegal sentence or above-guidelines sentence or raise on appeal a claim of ineffective assistance of counsel, but not to raise on appeal other issues regarding the sentencing.

Plea Agreement, Dkt. No. 121 at 8.

The district court held a plea hearing on the same day that Hunt signed the plea agreement. Midway through the hearing, the court told him that "you [are] generally giving up your rights to appeal," with certain "exceptions." Plea Tr. 31 (Aug. 13, 2015). As relevant here, the court said Hunt could appeal if he "think[s] the sentence is illegal or it exceeds the applicable Sentencing Guidelines range or resulted from ineffective assistance of counsel...." Id . Later in the hearing, the court again discussed the appeal waiver but did not suggest, as before, that the waiver permits appeal from an "illegal" sentence. Id . at 51.

The government did not object to the court's inconsistent characterizations of the waiver or otherwise offer clarification. The court accepted Hunt's guilty plea.

C. SENTENCING

In a presentencing memorandum, the government emphasized Hunt's "long term connection" to criminal activity at Potomac Gardens and asked the district court to "order as a condition of [his] supervised release that [he] stay away from" the complex. Government's Mem. in Aid of Sentencing, Dkt. No. 136 at 7, 9.

At the sentencing hearing, the government renewed its request for a stay-away condition. In support, it listed the crimes that Hunt committed at Potomac Gardens. The government added that "[h]e hasn't lived there." Sent. Tr. 16 (Nov. 20, 2015). Without disputing the government's recitation—except to say that Hunt lived at Potomac Gardens "at one point"—defense counsel responded that a "stay[-]away order from a particular large area of town is inappropriate," especially because Hunt "knows many people there ... who have nothing to do with drugs or illegal activity." Id . at 24. Defense counsel also suggested that a stay-away condition was unnecessary because Hunt was forbidden "to engage in illegal activities" in any event. Id .

Consistent with the plea agreement, the district court sentenced Hunt to 62 months of imprisonment and five years of supervised release. As a condition of that release, the court ordered Hunt to stay away from Potomac Gardens. Specifically, the court stated:

[W]ithout the prior approval of the U.S. Probation Office, you shall not enter the grounds of the Potomac Gardens housing complex area in Southeast Washington, D.C., or any structure in it, as bounded by the areas of Pennsylvania Avenue, Southeast, to the north; 14th Street, Southeast, to the east; K Street, Southeast, to the south; and 11th Street, Southeast, to the west.

Sent. Tr. 31. The court did not further explain the condition. After imposing sentence, it asked: "Are there any other matters we need to take up, Counsel?" Id . at 32-33. Defense counsel responded: "I don't believe so, sir." Id . at 33.

II. ANALYSIS

As noted, Hunt challenges the stay-away condition and the district court's failure to explain it. Before addressing the merits, we consider whether the appeal waiver bars his claims ab initio.1

A. HUNT'S APPEAL WAIVER DOES NOT UNAMBIGUOUSLY BAR HIS CHALLENGES TO THE STAY–AWAY CONDITION.

Like a guilty plea more generally, see United States v. Ruiz , 536 U.S. 622, 631–32, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), an appeal waiver serves the important function of resolving a criminal case swiftly and finally, see United States v. Hahn , 359 F.3d 1315, 1318, 1325 (10th Cir. 2004) (en banc) (per curiam). It also gives the defendant "an additional bargaining chip" during plea negotiations and thereby "increases the probability he will reach a satisfactory plea agreement with the Government" in the first place. United States v. Guillen , 561 F.3d 527, 530 (D.C. Cir. 2009). We have held that a "knowing, intelligent, and voluntary" appeal waiver, even though "anticipatory," "generally may be enforced." Id . at 529. And we ordinarily dismiss an appeal falling within the scope of such a waiver. See, e.g. , United States v. Adams , 780 F.3d 1182, 1184 (D.C. Cir. 2015) ; Guillen , 561 F.3d at 532 ; see also, e.g. , United States v. Ortega Hernandez , 804 F.3d 447, 452 (D.C. Cir. 2015) (partially dismissing appeal based on waiver); In re Sealed Case , 283 F.3d 349, 355 (D.C. Cir. 2002) (same). But cf . United States v. West , 392 F.3d 450, 460–61 (D.C. Cir. 2004) (enforcing waiver but affirming district court's judgment rather than dismissing appeal).

But we will not bar the door to a criminal defendant's appeal if his waiver only arguably or ambiguously forecloses his claims. A plea agreement is a contract and so we advert to principles of contract law in interpreting it. United States v. Henry , 758 F.3d 427, 431 (D.C. Cir. 2014) ; United States v. Jones , 58 F.3d 688, 691 (D.C. Cir. 1995). Ambiguity in a plea agreement, as in any other type of contract, is construed against the drafter. Henry , 758 F.3d at 431 ; In re Sealed Case , 702 F.3d 59, 63 n.2, 65 (D.C. Cir. 2012) ; see RESTATEMENT ( SECOND ) OF CONTRACTS § 206 (1981) ("In choosing among the...

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