United States v. Nicholson , 272 F. App'x 732 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 9, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-3334
(D.C. No. 6:07-CR-10028-MLB)
EUGENE W. NICHOLSON, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, O’BRIEN, and HOLMES, Circuit Judges.
On June 4, 2007, defendant Eugene W. Nicholson pleaded guilty to a
two-count Information charging him with one count of possession with intent to
distribute five grams or more of cocaine base and one count of forfeiture of
$2,017.54 in United States currency. The written plea agreement between
Nicholson and the United States provides that Nicholson “knowingly and
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
voluntarily waives any right to appeal or collaterally attack any matter in
connection with this prosecution, conviction and sentence.” Plea Agrmt. at 5, ¶ 9.
More specifically, he “knowingly waives any right to appeal a sentence imposed
which is within the guideline range determined appropriate by the court. . . . In
other words, [he] waives the right to appeal the sentence imposed in this case
except to the extent, if any, the court departs upward from the applicable
sentencing guideline range determined by the court.” Id. at 5-6, ¶ 9.
The district court imposed a sentence at the bottom of the advisory
guideline range. Despite the waiver of appellate rights in the plea agreement,
Nicholson then filed a notice of appeal. His docketing statement reflects that he
desires to appeal his sentence because he believes it is too harsh. Seeking to
enforce the waiver of appellate rights contained in the plea agreement, the United
States has moved to dismiss this appeal pursuant to United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
In determining whether to dismiss an appeal based on a waiver of appellate
rights, we consider “(1) whether the disputed appeal falls within the scope of the
waiver of appellate rights; (2) whether the defendant knowingly and voluntarily
waived his appellate rights; and (3) whether enforcing the waiver would result in
a miscarriage of justice.” Id. at 1325.
To prove that enforcement of an appellate waiver would result
in a miscarriage of justice, a defendant must establish at least one of
four circumstances: (1) reliance by the court on an impermissible
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factor such as race in the imposition of the sentence; (2) ineffective
assistance of counsel in connection with the negotiation of the
waiver; (3) the sentence exceeds the statutory maximum; or (4) the
waiver is otherwise unlawful and seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).
In his response to the government’s motion, Nicholson does not dispute that
his appeal falls within the scope of the appeal waiver, but he does contend both
that he did not knowingly and voluntarily waive his right to appeal and that
enforcing the waiver would result in a miscarriage of justice. First, he argues that
he did not knowingly and voluntarily waive his right to appeal because the plea
agreement failed to include certain information about the calculation of his
sentence that was critical to a meeting of the minds.
Nicholson admitted in the plea agreement to possessing with intent to
distribute a total of 14.24 grams of cocaine base and to possessing $2,017.54,
which was derived from or was intended to be used to facilitate the commission
of his possession with intent to distribute the drugs. To calculate the base offense
level for Count 1, the presentence report converted the $2,017.54 of currency into
a cocaine base equivalent and then added that to the 14.24 grams of cocaine base
to arrive at a total amount of cocaine base. 1
1
Application note 12 to U.S.S.G. § 2D1.1 provides in pertinent part as
follows:
Types and quantities of drugs not specified in the count of conviction
(continued...)
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Nicholson argues that neither the plea agreement nor the court’s plea
colloquy informed him of the possibility that the currency would be converted
into drugs and he would be sentenced on that hypothetical quantity of drugs rather
than the quantity to which he admitted in the plea agreement. He contends there
was no meeting of the minds about what quantity of drugs he was pleading guilty
to nor about how the currency would be converted into a drug equivalency, so his
appeal waiver was neither knowing nor voluntary.
Nicholson’s arguments are neither factually nor legally supportable. First,
there is no question about the amount of drugs to which he pleaded guilty. The
plea agreement states that on August 4, 2006 police officers found him in
possession of approximately 6.88 grams of cocaine base and on December 23,
2006, they found him in possession of approximately 7.36 grams of cocaine base
and 5.77 grams of marijuana. Plea Agrmt. at 2, ¶ 2. Nicholson pleaded guilty to
possessing with the intent to distribute the cocaine base found in his possession
on August 4 and December 23, id., which totals 14.24 grams.
1
(...continued)
may be considered in determining the offense level. See
§ 1B1.3(a)(2)(Relevant Conduct). Where there is no drug seizure or
the amount seized does not reflect the scale of the offense, the court
shall approximate the quantity of the controlled substance. In
making this determination, the court may consider, for example, the
price generally obtained for the controlled substance . . . .
Nicholson also admitted to possessing 5.77 grams of marijuana, but because that
amount was so minimal, it did not affect the base offense level determination.
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What Nicholson is essentially arguing is that when he pleaded guilty, he
did not know how his sentence would be calculated, and he did not agree to the
method used, so his waiver of his right to an appeal could not have been knowing
and voluntary. But he did not have to know how his sentence would be calculated
in order to agree to waive his right to appeal it.
The plea agreement recites the parties’ desire that the United States
Sentencing Guidelines (U.S.S.G.) would apply, it acknowledges that the sentence
to be imposed will be determined solely by the district court, and it acknowledges
that uncharged related criminal activity as well as conduct charged in any
dismissed counts may be considered as relevant conduct in calculating the
sentence under the guidelines. The plea agreement also recites Nicholson’s
understanding that if the court accepts his plea but imposes a sentence with which
Nicholson does not agree, Nicholson cannot withdraw his plea.
At the plea colloquy the court informed Nicholson that it did not know
what sentence it would impose and that it could not know what sentence it would
impose until it saw the presentence report. The court also advised Nicholson that
although his counsel may have discussed his views of likely sentencing with
Nicholson, his counsel could not possibly know what sentence Nicholson would
receive either. The court made it clear to Nicholson before it accepted his plea
that Nicholson was pleading guilty without knowing how long a sentence he
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would receive, except that it would be somewhere between the statutory minimum
of five years and the statutory maximum of forty years.
The district court questioned Nicholson thoroughly about his understanding
of the plea agreement, including the factual basis for the plea stated in the
agreement, how his sentence would be determined, and the appeal waiver. With
regard to the latter, the court explained:
Paragraph 9 sets forth your agreement that you will not appeal from
your conviction and sentence, nor will you come back at a later date
and ask me to reopen your case under Section 2255 or Rule 60(b).
Basically the effect of Paragraph 9 is that you will not ask any court
anywhere at any time for any reason to review what happens to you
in this court in terms of your convictions and sentence. Do you
understand that?
Tr. of Plea Hrg. at 10-11. Nicholson responded, “Yes, Your Honor.” Id. at 11.
Just before Nicholson entered his guilty plea, the court again quizzed Nicholson
about his understanding of the rights he was giving up by pleading guilty, stating,
in part, “And for all practical purposes, you’re giving up your right to appeal. Do
you understand the rights you’re giving up?” Id. at 15. Nicholson again
responded affirmatively.
The plea agreement recites that Nicholson “is entering into the agreement
and is pleading guilty because [he] is guilty and is doing so freely and
voluntarily.” Plea Agrmt. at 8, ¶ 15. And after Nicholson entered his guilty plea
on the record, the district court found that he had made his plea “freely,
voluntarily, and because he is guilty as charged; not out of ignorance, fear,
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inadvertence or coercion; and with a full understanding of the consequences.” Tr.
of Plea Hrg. at 15.
As we explained in Hahn, a defendant need not “know with specificity the
result he forfeits before his waiver is valid.” 359 F.3d at 1327. “The law
ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would likely apply
in general in the circumstances–even though the defendant may not know the
specific detailed consequences of invoking it.” Id. (brackets and quotation
omitted). Id. Thus Nicholson did not need to know exactly how his sentence
would be calculated in order to waive his right to appeal any aspect of his
sentence.
When determining whether a waiver of appellate rights was knowing and
voluntary, we look predominantly at two factors: “whether the language of the
plea agreement states that the defendant entered the agreement knowingly and
voluntarily,” and whether there was “an adequate Federal Rule of Criminal
Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. Both factors clearly establish
that Nicholson’s waiver of his right to appeal was knowing and voluntary.
And Nicholson’s conduct following the entry of his plea further supports
our determination. After the presentence report was issued, Nicholson’s counsel
reviewed the report with him and then sought and received a delay in sentencing
so that he could conduct research and possibly file objections to the presentence
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report. The sentencing was delayed from August to October and then again to
November 2007. Nicholson’s counsel did not, however, file any objections to the
presentence report. 2
At the sentencing hearing, the district court questioned Nicholson directly
about the presentence report. Nicholson said that he had reviewed the report and
had discussed it with his attorney and that there was nothing in the report that he
wished to change or correct. Nicholson also said that he was satisfied with the
way his attorney had handled his case. At the request of both Nicholson’s
counsel and the government, the district court imposed a sentence at the bottom of
the guideline range in accordance with the base offense level and criminal history
calculations set forth in the presentence report.
Our review of the plea agreement and Nicholson’s statements in open court
establishes that his waiver of appellate rights was both knowing and voluntary.
Nicholson also argues that enforcement of the waiver would result in a
miscarriage of justice. He contends that his sentence is unconstitutional because
he was sentenced for possession of an amount of drugs to which he did not admit
and of which he was not found guilty by a jury, in violation of United States v.
Booker, 543 U.S. 220 (2005). Further, he contends that it offends the notion of
2
The final delay in sentencing gave Nicholson the benefit of the November
2007 amendments to the guidelines that lowered the offense levels for various
cocaine base offenses. These amendments had the effect of lowering the bottom
of Nicholson’s advisory guideline range by 24 months and lowering the top of the
range by 30 months.
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judicial fairness to sentence a defendant for possession of an amount of drugs that
was never proven by the government. He notes that the price per gram that the
government used to calculate the cocaine base equivalency of the currency in his
possession may not bear any relation to the true price per gram that Nicholson
charged his customers and, therefore, may not reflect the true weight of the drugs
he sold to acquire the currency.
Nicholson’s arguments do not support a miscarriage-of-justice exception to
enforcement of his appeal waiver. They concern only the lawfulness of his
sentence and do not challenge the lawfulness of the appeal waiver itself. “The
relevant question, however, is not whether [defendant’s] sentence is unlawful . . .,
but whether . . . his appeal waiver itself [is] unenforceable.” Porter, 405 F.3d at
1144 (holding alleged Booker error does not make appeal waiver unenforceable).
To hold that alleged errors in calculating Nicholson’s sentence make his appeal
waiver unlawful would nullify the waiver based on the very sort of claim it was
intended to waive. Nicholson has not shown that enforcement of the waiver
would seriously affect the fairness, integrity, or public reputation of the judicial
proceedings.
The sentence imposed by the district court complied with the terms of the
plea agreement and with the understanding of the plea that Nicholson expressed at
the plea hearing. Nicholson has not demonstrated that his appeal falls outside the
scope of the appeal waiver, that he did not knowingly and voluntarily agree to the
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appeal waiver, or that it would be a miscarriage of justice to enforce the waiver.
Accordingly, the United States’ motion to enforce the waiver of appellate rights is
GRANTED and the appeal is DISMISSED.
ENTERED FOR THE COURT
PER CURIAM
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07-3334 U.S. v. Nicholson
J. O’BRIEN, concurring.
A notice of appeal was filed almost before the ink was dry on Nicholson’s
plea agreement waiving his right to appeal. In spite of his disregard of the
agreement he signed (and told the district judge he understood), he expects to
preserve the government’s concession — dropping one count of carrying a firearm
in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), which, upon
conviction, carries a mandatory consecutive sentence of at least five years. The
practice is becoming all too familiar.
Nicholson claims there was no “meeting of the minds” in the plea
agreement because he did not know how much crack cocaine would be attributed
to him. 1 From that dubious premise he argues: 1) he did not knowingly and
intelligently enter into the agreement and, in striking hyperbole, 2) enforcing the
waiver would result in a miscarriage of justice. His arguments are contrary to our
precedents (and the reasoning of the Supreme Court) and thus unworthy of serious
attention; frivolous. See Anders v. California , 386 U.S. 738, 744 (1967) (legal
points not arguable on the merits are frivolous); United States v. Heavrin, 330
F.3d 723, 729 (6th Cir. 2003) (defining a “frivolous position” as “one lacking a
1
The point has taken on dramatic, albeit late blooming, importance in
Nicholson’s papers. No objection was raised in the district court to the attribution
rules or the method of computation in the Presentence Investigation Report.
reasonable legal basis”); see also Coleman v. Comm’r, 791 F.2d 68, 71 (7th Cir.
1986) (“A petition to the Tax Court, or a tax return, is frivolous if it is contrary to
established law and unsupported by a reasoned, colorable argument for change in
the law. This is a standard applied under Fed. R. Civ. P. 11 for sanctions in civil
litigation, and it is the standard we have used for the award of fees under 28
U.S.C. § 1927 and the award of damages under Fed. R. App. P. 38.”).
The methodology for attributing drug amounts is set out in the guidelines
(which Nicholson and the government jointly asked the court to apply). In United
States v. Hahn, we rejected the argument that “a defendant can never knowingly
and voluntarily waive his appellate rights because he cannot possibly know in
advance what errors a district court might make in the process of arriving at an
appropriate sentence.” 359 F.3d 1315, 1326 (10th Cir. 2004) (en banc). We held
this analysis “improperly focus[es] on the prospective result of the sentencing
proceeding rather than the right relinquished.” Id. A defendant need “not know
the specific detailed consequences of invoking [a waiver]” in order for it to be
knowing and intelligent. United States v. Ruiz, 536 U.S. 622, 629 (2002); see
also United States v. Montano, 472 F.3d 1202, 1205 (10th Cir.), cert. denied, 128
S.Ct. 224 (2007) (expressly declining to adopt a rule that an appeal waiver is
unenforceable when defendant did not know what the sentencing range would be
at the time she entered into the plea agreement). “A defendant is not entitled to
withdraw his plea merely because he discovers long after the plea has been
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accepted that his calculus misapprehended . . . the likely penalties attached to
alternative courses of action.” Brady v. United States, 397 U.S. 742, 757 (1970).
The government is expected to scrupulously abide a plea agreement. See
Santobello v. N.Y., 404 U.S. 257, 262 (1971) (“[W]hen a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be
fulfilled.”); United States v. Scott, 469 F.3d 1335, 1339 (10th Cir. 2006) (same).
Yet, Nicholson chooses to selectively ignore parts of the agreement and hopes to
do so with impunity. Is it because he thinks there can be, or more accurately, will
be, no attendant consequences? Not necessarily; the fairness coin has two sides.
Perhaps the government should seek to set aside the plea agreement and proceed
with the case as originally charged.
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