United States v. Wells

• Citation: 29 F.4th 580
• Decision Date: 22 March 2022
• Docket Number: No. 19-10451,19-10451
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan WELLS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

29 F.4th 580

UNITED STATES of America, Plaintiff-Appellee,

v.Jonathan WELLS, Defendant-Appellant.

No. 19-10451

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2021 San Francisco, California

Filed March 22, 2022

Leah Spero (argued), Spero Law Office, San Francisco, California; Mara K. Goldman and Dejan M. Gantar, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Federal Public Defenders Office, San Jose, California; for Defendant-Appellant.

Merry Jean Chan (argued), Assistant United States Attorney, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: J. Clifford Wallace, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Wallace ;

Dissent by Judge Bea

WALLACE, Circuit Judge:

Appellant Jonathan Wells appeals from the district court's judgment and order imposing sentence and conditions of supervised release. We have jurisdiction under 28 U.S.C. §§ 1291, 3742. We review de novo "[w]hether an appellant has waived his right to appeal" pursuant to the terms of a plea agreement, United States v. Joyce , 357 F.3d 921, 922 (9th Cir. 2004), and "[w]hether a supervised release condition illegally exceeds the permissible statutory penalty or violates the Constitution," United States v. Watson , 582 F.3d 974, 981 (9th Cir. 2009). Because Wells has waived his right to appeal, we refuse to exercise jurisdiction over his claims–except for his constitutional violation claims–and we dismiss his appeal. However, we vacate in part and remand with instructions to the district court to clarify Special Condition No. 3 to avoid a constitutional violation.

I.

On April 28, 2016, police officers executed a search warrant for Wells' residence for evidence relating to possession of child pornography. Wells was subsequently arrested and interviewed by detectives, and he admitted to using peer-to-peer (P2P) applications to seek child pornography by means of keyword search for the past several years. Wells estimated he had downloaded approximately 20,000 files of child pornography, which were stored in various computers and external hard drives. Officers also found 69 compact discs or digital file discs that included files of child pornography.

On November 27, 2018, Wells was charged with one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1). In a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A)–(B), Wells pled guilty to the receipt of child pornography. He was sentenced to 76 months' imprisonment followed by five years of supervised release. In addition to the standard conditions of supervised release, the district court imposed 16 special conditions of supervised release. In this appeal, Wells challenges Special Condition Nos. 3 and 5. Special Condition No. 3 bans the possession and use of any computer without prior approval of the probation officer and Special Condition No. 5 bans the access to any internet or on-line computer service without approval of the probation officer.

II.

A.

We first turn to whether Wells knowingly and voluntarily waived the right to appeal the conditions of his supervised release. "A defendant's waiver of his appellate rights is enforceable if the language of the waiver encompasses his right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made." Joyce , 357 F.3d at 922–23 (citation omitted). "Plea agreements are contracts between a defendant and the government," which can contain a waiver of a defendant's right to appeal. Id. at 923 (citation omitted). Since "[p]lea agreements are contractual by nature and are measured by contract law standards," we "enforce the literal terms of the plea agreement" but generally "construe ambiguities in favor of the defendant." United States v. Franco-Lopez , 312 F.3d 984, 989 (9th Cir. 2002) (citations omitted). Thus, when the language of a plea agreement is clear and "[a]bsent some miscarriage of justice," we "will not exercise [the] jurisdiction to review the merits of [an] appeal if we conclude that [the defendant] knowingly and voluntarily waived the right to bring the appeal."

United States v. Harris , 628 F.3d 1203, 1205 (9th Cir. 2011) (internal quotation marks and citations omitted).

In this case, the plea agreement language is clear. The plea agreement states: "I agree to give up my right to appeal the judgment and all orders of the Court. I also agree to give up my right to appeal any aspect of my sentence." Dist. Ct. Dkt. No. 10 ¶ 4. We have repeatedly held that "any aspect" of a sentence includes "not only any term of imprisonment, but also fines and conditions of supervised release." Joyce , 357 F.3d at 923 ; see also Watson , 582 F.3d at 986 ("We determined that the reference to ‘any aspect of the sentence’ unambiguously encompassed supervised release terms."). In addition, the plea agreement expressly acknowledges that special conditions of supervised release will be part of the sentence imposed. The plea agreement states that "based on the nature of the offense, the Court should impose" two specific special conditions of supervised release, which require Wells to submit to searches and refrain from accessing or using any file-sharing P2P network or software. Dist. Ct. Dkt. No. 10 ¶ 8.

Wells knowingly and voluntarily agreed to the plea agreement and the waiver to appeal his sentence. The plea agreement was signed by both Wells and his counsel, which acknowledges that his "decision to plead guilty is made voluntarily, and no one coerced or threatened [him] to enter into this Agreement." Dist. Ct. Dkt. No. 10 ¶ 19. His counsel also confirmed that he "fully explained to [Wells] all the rights that a criminal defendant has and all the terms of this Agreement," and that Wells "understands all the terms of this Agreement and all the rights [he] is giving up by pleading guilty ... [and his] decision to plead guilty is knowing and voluntary." Id. Moreover, at the sentencing hearing, the district judge provided Wells with "final advisement" and stated: "Mr. Wells, there was a plea agreement in your case, and in paragraph 4 of your plea agreement, you gave up your right to appeal your conviction, the judgment, orders of the court, any aspect of your sentence, including any forfeiture or restitution order." Dist. Ct. Dkt. No. 29 at 58:22–59:2. Because the language of the waiver is unambiguous and Wells knowingly and voluntarily waived the right to bring the appeal, we are obligated to enforce the waiver and will not exercise the jurisdiction to review the merits of the appeal unless any exceptions apply. See Harris , 628 F.3d at 1205.

B.

We next turn to whether any exceptions to the waiver of the right to appeal apply. Even if a defendant knowingly and voluntarily waives the right to appeal his sentence, we have held that "[a] waiver of the right to appeal does not bar a defendant from challenging an illegal sentence." Watson , 582 F.3d at 977 (emphasis added). In this context, an "illegal sentence" has a very limited and precise meaning. We have defined "illegal sentence" to mean "one not authorized by the judgment of conviction or in excess of the permissible statutory penalty for the crime." United States v. Lo , 839 F.3d 777, 785 (9th Cir. 2016), quoting United States v. Vences , 169 F.3d 611, 613 (9th Cir. 1999). We have also held that a sentence is "illegal" if it "violates the Constitution." United States v. Torres , 828 F.3d 1113, 1125 (9th Cir. 2016), quoting United States v. Bibler , 495 F.3d 621, 624 (9th Cir. 2007). Thus, an appeal waiver does not apply to a sentence "if it exceeds the permissible statutory penalty for the crime or violates the Constitution." Bibler , 495 F.3d at 624.

In this case, Wells does not have any statutory basis for challenging the terms of his sentence as illegal. Wells does not argue that the sentence exceeds the permissible statutory penalty for the crime. Instead, Wells argues that Special Condition Nos. 3 and 5 are "illegal" because the conditions violate 18 U.S.C. § 3583(d), as they are not "reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)" and involve "greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B)." Dkt. No. 7 at 14–19. But our definition of "illegal sentence" in the context of an appeal waiver does not extend so far. Indeed, we have held that a "district court's failure to comply with § 3553 does not make [a defendant's] sentence ‘illegal.’ " Vences , 169 F.3d at 613. We again decline to extend the meaning of an "illegal sentence" to encompass sentences that potentially violate section 3583(d), which governs the district court's imposition of conditions of supervised release, and section 3553, which sets forth the factors to be considered in imposing a sentence. Otherwise, a valid appeal waiver as part of a bargained-for plea agreement would be meaningless and it would allow defendants to circumvent any plea agreement and appeal waiver. Accordingly, Wells fails to challenge the terms of his sentence as "illegal" under any valid statutory grounds. We decline to overreach and exercise our jurisdiction to entertain an appeal when the plea agreement effectively waived the right to appeal his sentence.

Wells also raises several constitutional challenges to his sentence. Since Bibler , we have held that an exception to an appeal waiver applies to sentences that are unlawful or violate the Constitution. See Bibler , 495 F.3d at 624 ; Watson , 582 F.3d at 987 ; Torres , 828 F.3d at 1125 ; United States v. Pollard , 850 F.3d 1038, 1041 (9th Cir. 2017). But our caselaw has not been entirely clear on when the exception based on constitutional challenges applies or on the scope of the exception. In light of the potential...