US v. Bull

• Decision Date: 23 July 1999
• Docket Number: No. 98-8059,98-8059
• Citation: 182 F.3d 1216
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. VINCENT BAD HEART BULL, DEFENDANT - APPELLANT
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1216

182 F.3d 1216 (10th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. VINCENT BAD HEART BULL, DEFENDANT - APPELLANT.

No. 98-8059

U.S. Court of Appeals, Tenth Circuit

July 23, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 97-CR-099-D)

Submitted on the briefs: ^*

Richard R. Jamieson, Casper, Wyoming, for Defendant-Appellant.

David R. Freudenthal, United States Attorney for the District of Wyoming, and L. Robert Murray, Assistant United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Before Tacha, McKAY, and Murphy, Circuit Judges.

Tacha, Circuit Judge

Defendant Vincent Bad Heart Bull was indicted on September 18, 1997, with knowing possession of a firearm after a prior felony conviction in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). He entered a plea of not guilty on September 29, 1997. On November 6, 1997, the United States Attorney filed a Notice of Intent to Seek Enhanced Penalty pursuant to Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Section 924(e) establishes a mandatory minimum sentence of fifteen years for anyone convicted under 18 U.S.C. § 922(g) who has three prior convictions for a violent felony or serious drug offense. Defendant subsequently sought to change his plea, but the trial court rejected the plea and reset the matter for trial. On April 23, 1998, defendant again sought a change of plea. The court accepted a written plea agreement in which defendant pled guilty to the one count indictment.

The court sentenced defendant on July 2, 1998. The government offered six prior convictions of defendant that it believed qualified as violent felonies under 18 U.S.C. § 924(e)(2)(B). The proffered convictions included one each for felony menacing, aggravated assault, intimidating a witness, escape, and two for third degree burglary. The district court found the felony menacing, aggravated assault, and intimidating a witness convictions were "violent felonies" for purposes of § 924(e) and sentenced defendant to 180 months of incarceration.

Defendant appeals his enhanced sentence, claiming that the conviction for intimidating a witness does not constitute a violent felony under the test set forth in Taylor v. United States, 495 U.S. 575 (1990). We take jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm.

As an initial matter, the government contends that defendant waived his right to appeal his sentence when he signed his plea agreement. The written plea agreement states: "Defendant agrees to waive his right to appeal the sentence he receives as a result of this Plea Agreement. However, if the United States appeals the Defendant's sentence pursuant to 18 U.S.C. § 3742(B), the Defendant is released from his waiver." R., Vol. 1, Doc. 47 at 7. "A defendant's knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable." United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998). However, defendant claims the waiver is unenforceable because the district Judge stated at the change of plea hearing that he was accepting the plea but rejecting the part of the agreement that waived defendant's right to appeal. For purposes of this case, we assume, without deciding the issue, that defendant could properly appeal his sentence.

Defendant argues that his conviction for intimidating a witness does not meet the "violent felony" test for § 924(e) sentence enhancement purposes. ¹ According to defendant, the categorical analysis for determining what constitutes a violent felony established by the Supreme Court in Taylor leads to the Conclusion that the witness intimidation conviction at issue is not a violent felony. We review the interpretation and application of sentence enhancements imposed under 18 U.S.C. § 924(e) de novo. See United States v. Romero, 122 F.3d 1334, 1340 (10th Cir. 1997), cert. denied, __U.S.__, 118 S. Ct. 1310 (1998). However, we may affirm the sentence "for reasons other than those relied upon by the district court, provided they are supported by the record." United States v. Myers, 106 F.3d 936, 941 (10th Cir.), cert. denied, 520 U.S. 1270 (1997).

We need not address defendant's argument because, even if his witness intimidation conviction did not count for the sentence enhancement, his 1981 escape conviction from Nebraska clearly constitutes a third violent felony that satisfies § 924(e). In United States v. Moudy, 132 F.3d 618, 620-21 (10th Cir.), cert. denied,__U.S.__, 118 S. Ct. 1334 (1998), we stated that "escape always constitutes" a violent felony under § 924(e)(2)(B). The escape conviction was properly in the record. Thus, regardless of the analysis concerning the witness intimidation conviction, defendant committed three prior violent felonies and was subject to enhanced sentencing under the Armed Career Criminal Act.

Accordingly, we AFFIRM the sentence imposed by the district court.

McKAY, Circuit Judge, Dissenting:

I respectfully Dissent from the majority's approach and its result in this case.

As a threshold issue, I do not think this court can so easily avoid the question of whether Defendant has the right to appeal when the issue is squarely presented to us. The Government argues that this court should dismiss this appeal because Defendant waived his right to appeal the sentence when he entered into the plea agreement. To assess whether Defendant has the right to appeal, I would examine the Rule 11 change of plea hearing in which the district court accepted Defendant's guilty plea. At that hearing, the court clearly stated several times that it rejected the portion of the plea agreement requiring Defendant to waive his right of appeal. First, after a colloquy between the parties and the court in which Defendant admitted the role of alcohol in his criminal history and in which he clarified that, at sentencing, he would contest whether his prior convictions qualified under the Armed Career Criminals Act, the district court advised Defendant that he would have the right to appeal his sentence if the court accepted his change of plea. See R., Vol. 3 at 18. At a later point during the hearing, in warning Defendant that the court would be bound by the sentencing guidelines, the Judge again informed Defendant, "I'm giving you your right of appeal, notwithstanding this plea agreement." Id. at 26-27. The Judge then asked Defendant if he understood that "unless your appeal is successful, you'll live with the result of the sentence." Id. at 27. Defendant answered, "Yes," he understood that consequence. Id. Additionally, in telling Defendant what rights he would be giving up by pleading guilty, the Judge indicated that Defendant would not be giving up his right to appeal:

"[S]ince I'm going to make sure you have a right to appeal my sentence if you think I've been erroneous in the way I've applied the sentencing guidelines or other statutes . . . with respect to your sentence, then you'll have the right to go to the Tenth Circuit Court of Appeals in Denver and try to get the sentence changed."

Id. at 31. Again, Defendant stated that he understood the significance of what the court had told him about his rights. See id. at 32. Finally, in response to Defendant's plea of guilty, see id. at 44, the Judge accepted the plea, finding that it was knowing and voluntary and again instructing Defendant to "remember [that] now you do have your right to appeal the sentence should I accept it, should I sentence you on this charge." Id. at 46. At no time did the Government object to these four statements by the court which unequivocally rejected the part of the plea agreement waiving Defendant's right to appeal the sentence and purported to reinstate that right to appeal. ¹

It is well established that Rule 11 does not allow a Judge to modify a plea agreement once it has accepted that agreement. See United States v. Veri, 108 F.3d 1311, 1315 (10th Cir. 1997) (citing Second, Seventh, and Ninth Circuit cases holding that if a sentencing court accepts a Rule 11(e)(1)(A) or (C) agreement, it is bound by the agreement and may not modify it); United States v. Dean, 80 F.3d 1535, 1541 (11th Cir.) (stating that "acceptance of a defendant's plea agreement [generally] prohibits a district court from modifying that agreement"), modified on reconsideration on other grounds , 87 F.3d 1212 (11th Cir. 1996); United States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (emphasizing that district court is not authorized to modify plea agreement once it has accepted it). None of these cases, however, speak to the circumstances of this case. Here, the court did not modify or attempt to modify the agreement after acceptance but instead modified the agreement before acceptance, when the court still retained the power to reject the plea agreement. Additionally, in this case Defendant relies on the district court's specific statements refusing to accept the plea with the waiver of Defendant's right to appeal and indicating that it would only accept the plea if Defendant's right of appeal was reinstated. Finally, the Government made no objection to the court's pre-acceptance modification of the plea agreement. In light of these distinctions, we must examine whether a defendant may reasonably rely on a district court's statements rejecting the appeal waiver provision which are made before the plea is taken and to which the government does not object.

In United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995), the Ninth Circuit concluded that a defendant's waiver of his right of appeal was unenforceable because the district court's oral pronouncements at sentencing concerning the right to appeal trumped the written plea agreement and because the government had failed to object to the court's statements. See id. at 918; cf. United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (noting that where the government has objected to the district court's rejection...