United States v. Shehadeh

Decision Date18 June 2020
Docket NumberNo. 18-10399,18-10399
Citation962 F.3d 1096
Parties UNITED STATES of America, Plaintiff-Appellee, v. Jamal SHEHADEH, Defendant-Appellant
CourtU.S. Court of Appeals — Ninth Circuit

David D. Fischer (argued), Law Offices of David D. Fischer APC, Rocklin, California, for Defendant-Appellant.

Christopher S. Hales (argued) and Michael D. Anderson, Assistant United States Attorneys; Camil A. Skipper, Appellate Chief; McGregor W. Scott, United States Attorney; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee.

Before: Eugene E. Siler,* Jay S. Bybee, and Ryan D. Nelson, Circuit Judges.

OPINION

R. NELSON, Circuit Judge:

Defendant-Appellant Jamal Shehadeh appeals the district court's denial of his motion to withdraw his guilty plea. We hold Shehadeh's appeal was timely because it was filed within fourteen days of entry of the amended judgment. We affirm the district court's refusal to allow Shehadeh to withdraw his guilty plea, as it was knowing and voluntary. The remainder of Shehadeh's claims are waived, and we do not consider his ineffective assistance of counsel claim for the first time on appeal.

I

On February 9, 2018, Jamal Shehadeh signed an agreement to plead guilty to two counts of arson to commit a felony. The plea agreement included promises by the government not to charge Shehadeh's wife or sister for witness tampering and not to pursue forfeiture against a house owned by Shehadeh's ex-wife. At defense counsel's request for a plea hearing "asap" with immediate sentencing, the district court held a change of plea hearing the next evening.

At the hearing, the district court inquired whether the plea was voluntary or had been induced by any threats or promises other than those contained in the plea agreement. Shehadeh affirmed that he was pleading guilty because he had actually committed the crimes at issue, and that no one had threatened him or made any promises to induce his plea. The government noted it was not "trying to force a plea or encourage a plea by making any threats or assertions" against his wife, sister, or ex-wife. Shehadeh then affirmed that there was no undue pressure. Shehadeh pled guilty, and affirmed he was aware that he waived his right to appeal the guilty plea, conviction, and the sentence imposed if the sentence did not exceed thirty years.

The district court entered judgment on February 14, 2018, sentencing Shehadeh to a mandatory thirty years in prison as required by statute, but deferring an order on restitution for a later date.

Two months later, Shehadeh filed a motion to withdraw his guilty plea, and a hearing to withdraw was held four months later still. The district court denied the motion to withdraw, holding it lacked jurisdiction because it had already sentenced Shehadeh to imprisonment when he moved to withdraw his plea. The district court thereafter entered an amended judgment ordering restitution on October 9, 2018. Shehadeh filed a notice of appeal the next day.

II

A defendant must file a notice of appeal within fourteen days of "the entry of either the judgment or the order being appealed." Fed. R. App. P. 4(b)(1)(A)(i). Shehadeh contends his appeal was timely because he filed it within fourteen days of the district court's entry of its amended judgment ordering restitution. The government argues Shehadeh's appeal is untimely because he did not appeal within fourteen days of the district court's entry of judgment announcing his custodial sentence.

The government relies on Manrique v. United States , ––– U.S. ––––, 137 S. Ct. 1266, 197 L.Ed.2d 599 (2017), in which the Supreme Court held that a single notice of appeal, filed between the initial judgment ordering sentencing and the amended judgment ordering restitution, is not sufficient to invoke appellate review of a later judgment awarding restitution. Id. at 1270. The government argues that because "deferred restitution cases involve two appealable judgments, not one," id. at 1273, Shehadeh was required to appeal within fourteen days of the district court's entry of judgment on Shehadeh's custodial sentence in February. Instead, Shehadeh waited to appeal until after the district court entered its amended judgment ordering restitution six months later.

Manrique only held that a notice of appeal filed after a sentence of imprisonment does not "spring forward" to become effective to appeal an order of restitution entered later. Id. The Court did not address the opposite issue presented here: is a defendant's notice of appeal after an amended judgment ordering restitution timely to appeal the initial judgment of conviction and sentencing? We hold that in these circumstances it is.

It is true that, after Manrique , Shehadeh could have filed an appeal within fourteen days after the initial judgment imposing his custodial sentence. Id . But he was not required to do so. Our conclusion today is that, where a district court defers its restitution order, a defendant wishing to appeal his conviction and sentence of imprisonment may enter a notice of appeal either within fourteen days following the district court's entry of the custodial sentence, or within fourteen days of the entry of the amended judgment, which includes the amount of restitution.

Here, the judgment being appealed is the amended judgment entered by the district court on October 9, 2018. This notice of appeal, timely filed after the district court had decided all remaining issues in the case, was sufficient to appeal the plea, the initial custodial sentence, and the final restitution order.

While the majority in Manrique did not specifically address the question presented here, it noted that both the "initial judgment" and the "amended judgment" were separately appealable orders. Id. at 1272 (citing Dolan v. United States , 560 U.S. 605, 617–18, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010) ). The Court looked to the language of 18 U.S.C. § 3742(a), which provides that a "defendant may file a notice of appeal in the district court for review of an otherwise final sentence." Id. at 1271. And "[b]y deferring restitution, the court is declining to announce a sentence." Id. at 1273. Our holding today is thus at least suggested by the Court's reasoning in Manrique and the plain language of § 3742(a).

Indeed, two justices appear to have read Manrique to allow the result we reach. See id. at 1274 (Ginsburg, J., dissenting) ("[A] defendant wishing to appeal his sentence and conviction when a restitution determination has been deferred has two choices: (1) He may immediately appeal his conviction and sentence of imprisonment, and later appeal the restitution order when made; or (2) he may await the restitution order and then appeal, through a single notice, his conviction, sentence of imprisonment, and restitution order."). While we are not bound to follow a view expressed by just two justices in dissent, we find the conclusion logical, particularly considering the majority did not present a contrary view.

Corey v. United States , 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), is also instructive. In Corey , the district court sentenced a defendant to a maximum term of custody and required the Bureau of Prisons to study the defendant for up to three months, pursuant to 18 U.S.C. § 4208(b). Id. at 170, 84 S.Ct. 298. The district court then reconsidered the defendant's sentence in light of the report and issued a final sentence. Id. The defendant did not appeal until after the district court's final sentence. Id. The Supreme Court held the defendant could have appealed within ten days of his original commitment to prison, or within ten days of the final sentencing. "While an initial commitment ... is, as we have pointed out, freighted with sufficiently substantial indicia of finality to support an appeal, the fact remains that the proceedings in the trial court are not actually terminated until after the period of diagnostic study, review of the same by the district judge, and final sentence." Id. at 175, 84 S.Ct. 298. Thus, "[l]ong-accepted and conventional principles of federal appellate procedure require recognition of the defendant's right to await the imposition of final sentence before seeking review of the conviction." Id. at 176, 84 S.Ct. 298.1

Those same long-accepted principles support our decision here. Because restitution is an aspect of sentencing, see Fed. R. Crim. P. 11 advisory committee's note to 1985 amendment, Shehadeh's sentence was not final until the amended judgment issuing restitution was ordered. See also Manrique , 137 S. Ct. at 1273 ("By deferring restitution, the court is declining to announce a sentence."). We will not disturb his right to await that sentence before appealing.2

III

Shehadeh challenges the district court's holding that it lacked jurisdiction over his motion to withdraw, claims that the district court violated his Sixth Amendment rights, and raises, for the first time on appeal, an ineffective assistance of counsel claim. While we hold the district court had jurisdiction over the motion to withdraw the plea, the district court did not plainly err in denying the motion because Shehadeh's plea was knowing and voluntary. The remainder of Shehadeh's claims are barred by the appellate waiver in his plea agreement. And we decline to consider his ineffective assistance of counsel claim for the first time on appeal.

A

We review whether the district court had jurisdiction to allow the defendant to withdraw his plea de novo. See United States v. Aguilar-Reyes , 653 F.3d 1053, 1055 (9th Cir. 2011). A defendant may withdraw a guilty plea after the court accepts the plea, but before it imposes sentence, if "the defendant can show a fair and just reason" for withdrawal. Fed. R. Crim. P. 11(d)(2)(B). Once the district court has imposed its sentence, the defendant may no longer withdraw the plea.

Fed. R. Crim. P. 11(e). The district court held it lacked jurisdiction to...

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