USA v. Xavier Seay

• Decision Date: 08 September 2010
• Docket Number: No. 09-2778.,09-2778.
• Citation: 620 F.3d 919
• Parties: UNITED STATES of America, Appellee, v. Andrew Xavier SEAY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

620 F.3d 919

UNITED STATES of America, Appellee,

v.Andrew Xavier SEAY, Appellant.

No. 09-2778.

United States Court of Appeals,Eighth Circuit.

Submitted: May 13, 2010.

Filed: Sept. 8, 2010.

Sam E. Khoroosi, argued, Sioux Falls, SD, for Appellant.

Connie Larson, AUSA, argued, Sioux Falls, SD, Robert J. Erickson, U.S. Dept. of Justice, Criminal Appellate Section, Washington, DC, on the brief, for Appellee.

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Andrew Seay was indicted and pled guilty to possession of a firearm while being an unlawful user of, or addicted to, a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and was sentenced by the district court ¹ to nine months imprisonment. Seay filed this timely appeal, arguing that the government unnecessarily delayed his indictment and that his conviction is unconstitutional under the Second Amendment. The government moved to dismiss Seay's appeal on the grounds that Seay waived his appeal rights by pleading guilty. We grant the government's motion in part, deny it in part, and affirm Seay's conviction.

I.

In March 2008, Seay was on probation as a result of a South Dakota conviction for distribution and possession with intent to distribute marijuana. On March 7, 2008, state law enforcement officers conducted a probation search of Seay's vehicle and residence, during which they found marijuana in Seay's vehicle and residence, and four firearms-two pistols and two shotguns-in Seay's residence. Seay's roommate told the officers that he and Seay used the shotguns for hunting. Seay denied that the pistols belonged to him. Seay was arrested on state charges based on the items found in the search. Following his arrest, Seay provided a urine sample that tested positive for marijuana.

On November 4, 2008, Seay was indicted by a federal grand jury for possessing a firearm while being an unlawful user of, or addicted to, a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Seay pled not guilty and moved to dismiss the indictment, arguing that the government unnecessarily delayed in presenting the case to the grand jury and that the indictment violated his Second Amendment rights. The magistrate judge ² issued a Report and Recommendation (“R & R”), recommending that Seay's motion be denied. The district court never adopted the R & R, however, as Seay pled guilty on April 8, 2008. Seay's plea agreement contained a standard waiver of defenses and appeal rights, stating that Seay “waives all defenses and his right to appeal any non-jurisdictional issues.” (Appellant's Add. 9.) At sentencing, the district court determined Seay's offense level to be 23, with a criminal history category III, resulting in a Guidelines sentencing range of 57 to 71 months imprisonment. The district court varied downward significantly and imposed a nine-month sentence.

Following the imposition of sentence, Seay filed a notice of appeal. The government moved to dismiss the appeal based on the appeal waiver in Seay's plea agreement. After considering briefs from both parties, we elected to decide the waiver issue along with the merits of Seay's appeal, which is now before us.

II.

Before addressing the merits of Seay's appeal, we must first decide whether he has waived the right to bring this appeal at all.

As a general rule, “[a] defendant's knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.’ ” United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir.1994) ( quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State's power to bring any indictment at all,” United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), that protects a defendant's “right not to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). We have often interpreted these Supreme Court cases to foreclose claims that raise “nonjurisdictional” issues and to permit only claims that question the trial court's “jurisdiction.”

Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir.1994) (alterations in original); see also United States v. Smith, 422 F.3d 715, 724 (8th Cir.2005) (“It is a well-established legal principle that a valid plea of guilty is an admission of guilt that waives all nonjurisdictional defects and defenses.”); Walker v. United States, 115 F.3d 603, 604 (8th Cir.1997) (“Stated differently, a valid guilty plea forecloses an attack on a conviction unless on the face of the record the court had no power to enter the conviction or impose the sentence.”). Thus, in order to bring this appeal, Seay must show that his appeal is jurisdictional in nature.

First, Seay argues that the government improperly delayed seeking an indictment in his case, and that the district court should have dismissed the indictment under Federal Rule of Criminal Procedure 48. Rule 48 allows a court to “dismiss an indictment ... if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial.” Fed.R.Crim.P. 48(b). The essence of Seay's argument-that the government waited too long to prosecute him-is similar to the argument raised in Cox v. Lockhart, 970 F.2d 448 (8th Cir.1992). In Cox, a habeas petitioner argued, following his valid guilty plea, that his state speedy trial claim should be analyzed as a Sixth Amendment speedy trial claim.

Id. at 452-53. We held that the petitioner had waived his right to a speedy trial by pleading guilty, noting that “[a] voluntary plea of guilty constitutes a waiver of all non-jurisdictional defects[,] ... [and] the right to a speedy trial is non-jurisdictional in nature.” Id. at 453 (alterations in original) ( quoting Becker v. Nebraska, 435 F.2d 157, 157 (8th Cir.1970) (per curiam)); see also United States v. Cook, 463 F.2d 123, 125 n. 6 (5th Cir.1972) (“[W]e ... recogniz[e] that pleas of guilty ordinarily constitute a waiver of all non-jurisdictional defects ... including the right to object to delay in trial under [Fed.R.Crim.P.] 48(b) or the Sixth Amendment.”); United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir.1965) (declining to reach Rule 48(b) and Sixth Amendment arguments following defendant's guilty plea). We believe that Seay's Rule 48 argument is similarly non-jurisdictional, as the district court was not without power to hear the case, see Walker, 115 F.3d at 604, simply because it declined to exercise its discretion to dismiss the indictment due to delay. Thus, we hold that Seay has waived his Rule 48 argument by pleading guilty.

Second, Seay argues that 18 U.S.C. § 922(g)(3) is facially unconstitutional following the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). According to Seay, the prohibition on firearm possession in § 922(g)(3) violates his individual right to keep and bear arms enshrined in the Second Amendment. This is not an as-applied challenge; rather, Seay argues that § 922(g)(3) is unconstitutional in all instances. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (to prove facial unconstitutionality, “the challenger must establish that no set of circumstances exists under which the Act would be valid”). We have previously held that such facial attacks are jurisdictional in nature and survive a valid guilty plea. ³ See, e.g., United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (“A claim that a statute is facially unconstitutional” survives a guilty plea.); Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir.1982) (per curiam) (“[T]his Circuit and others have indicated that a guilty plea does not preclude a defendant from claiming that the statute under which he pleaded is unconstitutional.”); see also United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.1995); United States v. Palacios-Casquete, 55 F.3d 557, 561 (11th Cir.1995); United States v. Skinner, 25 F.3d 1314, 1316-17 (6th Cir.1994); United States v. Montilla, 870 F.2d 549, 552-53 (9th Cir.1989).

The government directs us to United States v. Fox, 573 F.3d 1050 (10th Cir.), cert. denied, --- U.S. ----, 130 S.Ct. 813, 175 L.Ed.2d 570 (2009), in which the Tenth Circuit held, without significant discussion, that a defendant's challenge to the constitutionality of 18 U.S.C. § 922(g) was non-jurisdictional and, therefore, waived. Id. at 1052 n. 1. The government argues that Fox's holding is consistent with the way the Supreme Court has explained the concept of jurisdiction in cases such as United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton, several defendants were convicted of conspiring to distribute, and to possess with intent to distribute, a detectable amount of cocaine and cocaine base. Id. at 627-28, 122 S.Ct. 1781. The district court, however, made a drug-quantity finding at sentencing that implicated the enhanced penalties under 21 U.S.C. § 841(b)(1)(A).

Id. at 628, 122 S.Ct. 1781. The defendants appealed, arguing that their sentences were invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), “because the issue of drug quantity was neither alleged in the indictment nor submitted to the petit jury.” Cotton, 535 U.S. at 628-29, 122 S.Ct. 1781. The Fourth Circuit agreed, vacating the defendants' sentences “because an indictment setting forth all the essential elements of an offense is both...