United States v. Madrid

• Decision Date: 15 October 2020
• Docket Number: No. 19-50999,19-50999
• Citation: 978 F.3d 201
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Efren MADRID, Jr., Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

978 F.3d 201

UNITED STATES of America, Plaintiff—Appellee,

v.Efren MADRID, Jr., Defendant—Appellant.

No. 19-50999

United States Court of Appeals, Fifth Circuit.

FILED October 15, 2020

Joseph H. Gay, Jr., Todd R. Keagle, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee.

John Andrew Kuchera, Waco, TX, for Defendant - Appellant.

Before GRAVES, COSTA, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Efren Madrid, Jr. ("Madrid") pleaded guilty to conspiracy to possess child pornography. The district court sentenced Madrid to 70 months of imprisonment and ten years of supervised release. In addition, the court imposed a $25,000 fine, a $100 mandatory special assessment, a $5,000 special assessment under the Justice for Victims of Trafficking Act of 2015 ("JVTA"), and a $5,000 assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 ("AVAA"). Madrid appeals his sentence, arguing that the district court erroneously assessed him a monetary penalty under the AVAA, erroneously appears to have imposed two JVTA special assessments, and erroneously believed the Bureau of Prisons would give him credit for time incarcerated on state charges prior to going into federal custody. We AFFIRM.

I.

Madrid was initially charged in a two-count indictment with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and counterfeiting, in violation of 18 U.S.C. § 472. Madrid later pled guilty pursuant to a plea agreement, to a superseding information charging him with possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5). The district court sentenced Madrid to 70 months of imprisonment and ten years of supervised release. In addition, the court imposed a $25,000 fine, a $100 mandatory special assessment, a $5,000 special assessment under the JVTA, and a $5,000 assessment under the AVAA. Id .

Madrid now appeals, arguing that: (1) the district court erred in assessing a $5,000 monetary penalty under the AVAA in the belief that the AVAA is a freestanding special assessment; (2) the district court improperly imposed two special assessments, contradicting an oral announcement; and (3) the district court failed to adjust Madrid's sentence after erroneously believing the Bureau of Prisons would give him credit for time incarcerated on state charges prior to going into federal custody.

II.

This court reviews de novo whether an appeal waiver bars an appeal. United States v. Keele , 755 F.3d 752, 754 (5th Cir. 2014). To determine the validity of the appeal waiver, "this court considers whether the waiver was knowing and voluntary and whether, under the plain language of the plea agreement, the waiver applies to the circumstances at issue." Id . In doing so, we employ "ordinary principles of contract interpretation, construing waivers narrowly and against the Government." Id . We usually employ a two-step inquiry, asking: (1) "whether the waiver was knowing and voluntary" and (2) "whether, under the plain language of the plea agreement, the waiver applies to the circumstances at issue." Id . In this case, however, neither party contests the knowing and voluntary nature of the waiver. We proceed to step two—whether the waiver bars the present appeal.

The parties disagree whether Madrid's plea agreement bars this appeal. The Government argues that the appellate waiver should be enforced, but Madrid contends that the waiver-of-appeal provision is not applicable because a statutory-maximum exception occurred. Madrid argues that the district court erred when it assessed a monetary penalty under the AVAA because "the Government failed to establish the identity and losses of any ‘victims’ of the offense of conviction," and as such, his situation comes within the purview of United States v. Winchel , 896 F.3d 387, 389 (5th Cir. 2018) ("[I]f a court orders a defendant to pay restitution...without determining that the defendant's conduct proximately caused the victim's claimed losses, the amount of restitution necessarily exceeds the statutory maximum."). We disagree.

The written and signed plea agreement included a waiver-of-appeal provision containing the following language:

By entering into this Agreement, and as a term of this Agreement, I voluntarily and knowingly waive the right to appeal the sentence on any ground, including but not limited to any challenges to the determination of any period of confinement, monetary penalty or obligation, term of supervision and conditions thereof, and including any appeal right conferred by 18 U.S.C. § 3742.

(emphasis added) Madrid did not object to the $5,000.00 AVAA special assessment in the district court.

The waiver of appeal had two only exceptions: "ineffective assistance of counsel or prosecutorial misconduct of constitutional dimension of which Appellant did not have knowledge of at the time of sentencing." As part of the plea agreement, the Government dismissed the two counts from the original indictment, which exposed Madrid to 20 additional years in custody and a minimum sentence of five years, and recommended a full three-level reduction for acceptance of responsibility.

The court confirmed that Madrid read, reviewed with his counsel, and understood the terms of the plea agreement, including the appeal waiver provision and that the other charges that would be dropped. Before signing the plea agreement, Madrid confirmed that he entered into the agreement voluntarily, and that he wanted the court to accept the plea agreement. Further, the district court advised Madrid that he had the right to appeal and that pursuant to the plea agreement, he was giving up his right to appeal except in limited circumstances. Madrid expressed a clear understanding of his right to appeal and agreed to that waiver.

Further, the plea agreement addressed terms regarding restitution and special assessments, and Madrid expressed a clear understanding of his right to appeal and agreed to that waiver. This court has held that a defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the waiver of an appeal. United States v. Alvarado-Casas , 715 F.3d 945, 955 (5th Cir. 2013). We consider "the parties’ intent at the time the agreement was executed, as determined from the language of the contract and the surrounding circumstances." United States v. Araguz-Briones , 243 F. App'x 64, 66-67 (5th Cir. 2007). By challenging the AVAA special assessment of which he was repeatedly admonished, Madrid is attempting to circumvent the waiver-of-appeal provision contained in the negotiated plea agreement.

No question exists that Madrid's guilty plea and appeal waiver were knowingly and voluntarily entered. See United States v. Rivas-Lopez , 678 F.3d 353, 356-57 (5th Cir. 2012) ; see also Alvarado-Casas , 715 F.3d at 955. It is not the role of the court to rewrite the terms of a plea agreement entered into willingly and knowingly; instead, the court is only responsible for ensuring that freely negotiated terms of plea agreements are enforced. United States v. Johnson , 132 F.3d 628 (11th Cir. 1998).

Here, Madrid agreed to the terms of his plea agreement, and waived his right to appeal. A monetary penalty under the AVAA is separate and distinct from restitution, and a special assessment under 18 U.S.C. § 2259A does not require identification of a victim and proof of losses. The facts of this case are distinguishable from Winchel , and as a result, Madrid fails to demonstrate that the district court ordered an assessment in excess of statutory authority.

Lastly, in addition to his challenge to the AVAA assessment, Madrid argues that the written judgment incorrectly imposes two JVTA assessments and that the Bureau of Prisons is not giving him the credit toward his sentence that the district court intended him to have. We find these arguments lack merit. Because Madrid does not argue that either issue falls outside the scope of his appeal waiver, we decline to consider them and dismiss the appeal with respect to those two issues. See United States v. Williams , 949 F.3d 237, 239-40 (5th Cir. 2020).

Moreover, though the waiver applies in Madrid's case, we recognize that an appeal waiver does not deprive us of jurisdiction. United States v. Story , 439 F.3d 226, 230 (5th Cir. 2006). Because we can also affirm the judgment on the merits, we choose to go further, affirming with additional alternative reasons. See United States v. Smith , 528 F.3d 423, 424 (5th Cir. 2008).

III.

This court has found that appeals challenging restitution orders are analogous to appeals challenging special assessments. See United States v. Graves , 908 F.3d 137, 140 (5th Cir. 2018). Both types of appeals "turn on whether a statute authorizes the district court to demand money from the defendant—and hence whether the district court exceeded the ‘statutory maximum’ in doing so." Id . The special assessment at issue in this appeal is required by 18 U.S.C. § 2259A, which provides that "[i]n addition to any other criminal penalty, restitution, or special assessment authorized by law, the court shall assess—(1) not more than $17,000 on any person convicted of an offense under section 2252(a)(4) or 2252A(a)(5)." Section 2259A was created as a part of the AVAA in response to issues identified by Chief Justice Roberts and Justice Sotomayor in calculating the losses of a victim in child pornography cases. See Paroline v. United States . 572 U.S. 434, 472-473, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014).

Madrid is correct that the AVAA did not "relieve the Government of its burden to establish ‘the defendant's relative role in the causal process’ " with respect to restitution under Section 2259. Madrid is incorrect, however, when he suggests that the Government must offer such proof when the court imposes a special assessment under ...