United States v. Kelly
| Decision Date | 08 February 2019 |
| Docket Number | No. 17-60133,17-60133 |
| Citation | 915 F.3d 344 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Terry KELLY, Also Known as T.K., Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Clayton Adair Dabbs, Philip Martin Levy, Esq., Jamiel M. Wiggins, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Mississippi, Oxford, MS, for Plaintiff-Appellee.
Gregory Scott Park, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Mississippi, Oxford, MS, for Defendant-Appellant.
Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
Terry Kelly pleaded guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and enhanced per the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (2012). As part of his plea agreement, Kelly agreed to an appeal waiver, yet he appeals.
Kelly raises two issues. First, he asserts that the district court plainly erred in applying the ACCA enhancement because he lacks the requisite number of violent felony predicates. Second, he claims that he received ineffective assistance of counsel ("IAC"), resulting in an increased term of imprisonment. Because Kelly’s ACCA enhancement claim is barred by his appeal waiver and his IAC claim is not ripe for review on direct appeal, we dismiss the appeal as to both claims.
Police searched Kelly’s house after receiving information that stolen property might be there. During the search, officers discovered that Kelly, a convicted felon, was in possession of two rifles, hence the indictment.1
The district court held a Rule 11 plea hearing. In addition to discussing the charge and the related enhancement, the court emphasized Kelly’s appeal waiver: "[D]o you, in particular, understand that by entering into the Plea Agreement and entering a guilty plea, you will waive all rights to appeal your conviction on any ground and to collaterally attack your conviction except for allegations of ineffective assistance of counsel and prosecutorial misconduct?" Kelly answered in the affirmative ("Yes, ma’am."), acknowledging that he understood his plea agreement and the related appeal waiver.
After the guilty plea, the government filed a U.S.S.G. § 5K1.1 motion on behalf of Kelly for his substantial assistance with a RICO investigation against the Aryan Brotherhood of Mississippi.2 The district court granted the § 5K1.1 motion and imposed a 100-month term of imprisonment plus five years of supervised release. The sentence imposed was below both the ACCA minimum of fifteen years and the recommended guideline range of 180 to 188 months. At sentencing, Kelly again affirmed that he "expressly waive[d] any and all rights" to appeal or collaterally attack "the conviction or sentence imposed ... except [as] to claims relating to prosecutorial misconduct and ineffective assistance of counsel relating to the validity of the waiver of appeal or the validity of the guilty plea itself."
After sentencing, however, Kelly raised an IAC claim, which prompted his trial counsel to withdraw. This court assigned the Federal Public Defender to represent Kelly on appeal and granted Kelly’s unopposed motion for leave to file an untimely notice of appeal.
Kelly raises two issues on appeal. First, he asserts that the district court plainly erred in applying the ACCA enhancement. Second, he claims IAC. Before analyzing either claim, we must address the applicability and scope of the appeal waiver.
"This court reviews de novo whether an appeal waiver bars an appeal." United States v. Keele , 755 F.3d 752, 754 (5th Cir. 2014). "A criminal defendant may waive his statutory right to appeal in a valid plea agreement." United States v. Pleitez , 876 F.3d 150, 156 (5th Cir. 2017). When deciding "whether an appeal of a sentence is barred by an appeal waiver provision in a plea agreement, we conduct a two-step inquiry: (1) whether the waiver was knowing and voluntary and (2) whether the waiver applies to the circumstances at hand, based on the plain language of the agreement." United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005).
For a waiver to be knowing and voluntary, "[a] defendant must know that he had a ‘right to appeal his sentence and that he was giving up that right.’ " United States v. Portillo , 18 F.3d 290, 292 (5th Cir. 1994) (quoting United States v. Melancon , 972 F.2d 566, 568 (5th Cir. 1992) ). Moreover, "[a] waiver is both knowing and voluntary if the defendant indicates that he read and understood the agreement and the agreement contains an ‘explicit, unambiguous waiver of appeal.’ " Keele , 755 F.3d at 754 (quoting United States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005) ). But, as acknowledged in the plea agreement, "a defendant may always avoid a waiver on the limited grounds that the waiver of appeal itself was tainted by [IAC]." United States v. White , 307 F.3d 336, 339 (5th Cir. 2002).
"We apply normal principles of contract interpretation when construing plea agreements."3 When determining "whether an appeal waiver applies to the issues presented, this [c]ourt ‘ascertain[s] the ordinary meaning of the waiver provision,’ " Pleitez , 876 F.3d at 156 (quoting United States v. Jacobs , 635 F.3d 778, 781 (5th Cir. 2011) ), and "construe[s] appeal waivers narrowly ... against the government," id . (quoting United States v. Palmer , 456 F.3d 484, 488 (5th Cir. 2006) ). Nonetheless, "[t]he government has a strong and legitimate interest in both the finality of convictions and in the enforcement of plea bargains." United States v. Dyer , 136 F.3d 417, 429 (5th Cir. 1998).
With respect to his ACCA claim, Kelly concedes in his reply brief that "there is a strong presumption for finding the waiver enforceable, as he ... knowingly and voluntarily plea[ded] guilty and the language in the plea is sufficiently clear." Kelly, however, tempers this admission by further asserting that "he would not have [pleaded] guilty had he known there was a potential challenge" to the ACCA enhancement under recent Supreme Court caselaw. Accordingly, Kelly contends that he "knowingly and voluntarily agreed to plead guilty, but only under the premise that there were no meritorious arguments to be made regarding the ACCA enhancement."
In response, the government asserts that the waiver (1) was knowing and voluntary and (2) bars the ACCA issue Kelly raises on appeal. The government maintains that "[w]here the plea agreement contains an unambiguous waiver signed by the defendant, and the defendant states during the Rule 11 plea colloquy that he has read and understood [the] agreement, the waiver is considered knowing and voluntary." The government further asserts that Kelly knew that "he had a right to appeal his sentence and that he was giving up that right" (quoting Portillo , 18 F.3d at 292 ). The government posits that "[i]t is plain, based on his signing the plea agreement and his two declarations to the district judge, that Kelly was well aware of his right to appeal and voluntarily waived that right."4
Turning to the second prong, the government claims that "[Kelly’s] challenge to the ACCA enhancement is clearly barred because it does not fall within the Fifth Circuit’s exceptions to enforcement of a validly executed waiver."5 Consequently, the waiver is enforceable and bars Kelly’s appeal of this issue.
We must determine whether Kelly’s waiver was knowing and voluntary and "whether the waiver applies to the circumstances at hand, based on the plain language of the plea agreement." McKinney , 406 F.3d at 746. The waiver says that "[d]efendant hereby expressly waives any and all rights to appeal the conviction in this case, on any ground whatsoever ...."6 At the plea hearing, the court asked Kelly whether he "underst[ood] that by entering into the Plea Agreement and entering a guilty plea, [he] waive[d] all rights to appeal [his] conviction on any ground and to collaterally attack [his] conviction except for allegations of ineffective assistance of counsel and prosecutorial misconduct."7 Kelly replied, "Yes, ma’am."
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