United States v. Wilbourn, 17-5938
| Decision Date | 13 March 2019 |
| Docket Number | No. 17-5938,No. 17-5939,17-5938,17-5939 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TREMAINE WILBOURN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Tremaine Wilbourn pleaded guilty to numerous offenses pursuant to a plea agreement in which he also waived his right to appeal his convictions and sentence. Wilbourn now argues, however, that his plea was not knowing and voluntary and, therefore, should be set aside. He also contends that he received ineffective assistance of counsel in deciding whether to enter into that plea agreement. The United States, through the office of the United States Attorney, moves for dismissal of the appeal in accordance with the appellate-waiver provision to which Wilbourn agreed. For the reasons set forth below, we grant the government's motion and dismiss the appeal.
In 2006, Wilbourn pleaded guilty to armed bank robbery and to carrying a firearm during and in relation to a crime of violence. The district court sentenced Wilbourn to 121 months in prison and three years on supervised release. After his release from incarceration, Wilbourn began serving his supervised-release term on July 1, 2014. Only 13 months later, however, Wilbourn was arrested again and eventually was indicted for carjacking; using, carrying, and brandishing a firearm during and in relation to a crime of violence; and being a felon in possession of ammunition (District Court Case No. 2:15-cr-20293). At the request of Wilbourn's probation officer, the district court also issued a warrant for Wilbourn to appear for a revocation of his supervised release because of the defendant's commission of federal crimes and his unauthorized use of marijuana (District Court Case No. 2:05-cr-20240).
Facing maximum sentences of life in prison plus 25 years for the indicted offenses, and additional prison time for the violation of supervised release, Wilbourn entered into a favorable plea agreement with the government. In their entirety, the substantive terms of that agreement provided:
Despite the plea agreement's language indicating that the district court had the discretion to run Wilbourn's sentence for the supervised-release violation concurrently or consecutively with his sentences for the indicted crimes, 18 U.S.C. § 924(c)(1)(D)(ii) unambiguously states that "no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person." (Emphasis added.) Thus, the district court was required to run the 30-month sentence for the violation of supervised release consecutively with the 25-year-and-two-day sentence already imposed in District Court Case No. 2:15-cr-20293, regardless of any language to the contrary in the plea agreement itself.
Unfortunately, the district court did not clear up the parties' misconceptions. During the change-of-plea hearing, when referencing the possible sentence for the supervised-release violation, the district court explained to Wilbourn, "And in this agreement, you and the government are leaving it to me to decide whether that is part of the 25 years and two days or whether it goes on top of the 25 years and two days." Furthermore, at the sentencing hearing, the district court again noted that the prosecution and the defense "have not agreed as to whether [the 30-month sentence for violating the terms of supervised release is to be] consecutive or concurrent," and invited counsel to argue for their respective positions on the issue.
After hearing from the prosecution and from defense counsel, the district court discussed the relevant sentencing factors set forth in 18 U.S.C. § 3553(a). The district court then ordered that the sentence for the violations of the terms of supervised release run consecutively with the 25-year-two-day sentence because of Wilbourn's "need for additional time to understand and deal with the issues that come from the failure to follow authority because that goes directly to the supervised release violation, to the issues related to not following the things that you are told to do."
Wilbourn now seeks to appeal from that determination. In doing so, he argues that his plea agreement should be set aside because he did not enter it knowingly and voluntarily. He claims that he understandably was under the impression that the district court might order the 30-month sentence to be served concurrently with the longer prison sentence when, in reality, the district court was forbidden by statute to do so. Wilbourn also challenges the legitimacy of his guilty plea on the basis that his attorney provided ineffective assistance of counsel by not recognizing and explaining the limits on the district court's sentencing discretion.
A criminal defendant may waive any constitutional right—even his right to appeal his sentence—in a valid plea agreement. See United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001); United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). For such a plea agreement to be valid for constitutional purposes, however, the defendant must have entered into it knowingly and voluntarily. Smith, 344 F.3d at 483. Moreover, "[a] guilty plea can be involuntary as a result of the ineffective assistance of counsel." United States v. Gardner, 417 F.3d 541, 545 (6th Cir. 2005) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Here, in the face of the government's request that we dismiss Wilbourn's appeal that he ostensibly waived in his plea agreement, Wilbourn insists that the plea could not have been entered knowingly and voluntarily because he had been misinformed by the district court and by his counsel about the possibility that the district court would order his 30-month sentence to be served concurrently with the longer sentence he received for the offenses charged in District Court Case No. 2:15-cr-20293.
Ordinarily, "[w]e apply de novo review to the issue of whether a criminal defendant has waived appellate rights in a valid plea agreement." United States v. Detloff, 794 F.3d 588, 592 (6th Cir. 2015). Where, as here, however, the defendant failed to raise his objections before thedistrict court, we review for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). To satisfy the plain-error standard, Wilbourn must establish "(1) error (2) that was obvious or clear, (3) that affected defendant's substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (citation and internal quotation marks omitted).
"For an appellate waiver to be knowing and voluntary, the defendant . . . must have entered into the plea agreement as a whole knowingly and voluntarily." United States v. Atay...
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