United States v. Jason Galloway ( 2019 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 18-1304
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    JASON GALLOWAY,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Southern District of Indiana, Evansville Division.
    No. 3:16-cr-00012-RLY-MPB-1 — Richard L. Young, Judge.
    ____________________
    ARGUED DECEMBER 4, 2018 — DECIDED MARCH 4, 2019
    ____________________
    Before BAUER, KANNE, and BRENNAN, Circuit Judges.
    BRENNAN, Circuit Judge. Jason Galloway pleaded guilty to
    possessing ammunition as a felon. He now appeals his
    sentence, raising an unpreserved argument that the district
    court used an incorrect guideline range. We dismiss his
    appeal, however, because in his plea agreement Galloway
    waived his appellate rights.
    2                                                 No. 18-1304
    I.
    On January 21, 2016, police officers responded to a domes-
    tic violence 911 call from Galloway’s ex-wife in Evansville,
    Indiana. The officers found Galloway a short distance from
    his ex-wife’s house and arrested him. A search incident to
    arrest yielded four bullets from his pant pocket. Galloway, a
    convicted felon, was indicted for violating 
    18 U.S.C. § 922
    (g)(1) by possessing a firearm (a revolver found at his
    ex-wife’s house) and ammunition (the bullets in his pocket).
    Before trial, the parties reached an agreement in which
    Galloway pleaded guilty to the ammunition count in
    exchange for dismissal of the firearm count (among other
    things). The written plea agreement that Galloway signed
    contained the following appellate waiver, which we repeat in
    full because of its importance to this case:
    24.    Direct Appeal: The defendant under-
    stands that the defendant has a statutory right
    to appeal the conviction and sentence imposed
    and the manner in which the sentence was
    determined. Acknowledging this right, and in
    exchange for the concessions made by the Gov-
    ernment in this Plea Agreement, the defendant
    expressly waives the defendant’s right to appeal
    the conviction imposed in this case on any
    ground, including the right to appeal conferred
    by 
    18 U.S.C. § 3742
    . The defendant further
    agrees that in the event the Court sentences the
    defendant to a sentence higher or lower than
    any recommendation of either party, regardless
    of the defendant’s criminal history category or
    how the sentence is calculated by the Court,
    No. 18-1304                                                3
    then the defendant expressly waives the
    defendant’s right to appeal the sentence
    imposed in this case on any ground, including
    the right to appeal conferred by 
    18 U.S.C. § 3742
    . This waiver of appeal specifically
    includes all provisions of the guilty plea and
    sentence imposed, including the length and
    conditions [of] supervised release and the
    amount of any fine.
    Petition to Enter Plea of Guilty and Plea Agreement at ¶24,
    ECF No. 68.
    The second sentence in the paragraph above explains
    Galloway unconditionally waived his right to appeal his
    conviction. With respect to sentencing issues, however, the
    third sentence conditions Galloway’s appellate waiver on a
    deviation by the district court from a recommendation made
    by one of the parties.
    At the change of plea hearing, the district court reviewed
    the language of the appellate waiver verbatim. The district
    court also engaged in the following colloquy with Galloway:
    THE COURT: Mr. Galloway, what this
    paragraph tells us is that in exchange for
    concessions made to you by the United States in
    arriving at this plea agreement, if I accept the
    plea agreement and sentence you pursuant to
    the plea agreement, then you’ll be giving up or
    waiving your right to appeal the conviction and
    sentence in this case to a higher court. Is that
    your understanding as well?
    GALLOWAY: Yes, sir.
    4                                                 No. 18-1304
    THE COURT: Did you discuss this with your
    attorney?
    GALLOWAY: Yeah, we did.
    THE COURT: Is this all voluntary?
    GALLOWAY: Yes.
    Following this exchange, the district court accepted
    Galloway’s guilty plea and set a date for sentencing.
    The probation officer’s sentencing recommendation stated
    Galloway’s guideline range would have been 130 to 162
    months in prison, were it not capped by the 120-month
    statutory maximum. The government filed a sentencing
    memorandum asking the district court to give Galloway the
    full 120 months. Galloway did not file a sentencing memoran-
    dum, nor did he lodge any written objections to the probation
    officer’s guideline calculations.
    At sentencing, Galloway’s attorney told the court he had
    determined, after reviewing the Sentencing Guidelines and
    applicable case law, that “there was no way to make an objec-
    tion to the probation officer’s findings” and that he believed
    her guideline calculations were correct. Defense counsel did
    argue the guideline range “clearly overstate[s] the events that
    took place that night and can and should be addressed by way
    of a departure by this Court.” For its part, the government
    reiterated its position that 120 months was the correct prison
    term.
    After hearing argument, the district court sentenced
    Galloway to 120 months in prison, three years of supervised
    release, a $1,000 fine, and a $100 special assessment. The
    district court also informed Galloway that, in its opinion,
    No. 18-1304                                                      5
    Galloway had waived his appellate rights because the
    sentence was “pursuant to the plea agreement” and “below
    what the guidelines call for.” Galloway nevertheless appealed
    the sentence.
    II.
    A defendant may waive appellate rights through a plea
    agreement, assuming such waiver is voluntary and knowing.
    United States v. Worthen, 
    842 F.3d 552
    , 554 (7th Cir. 2016)
    (“Generally speaking, appeal waivers are enforceable and
    preclude appellate review.”) (citing United States v. Sines, 
    303 F.3d 793
    , 798 (7th Cir. 2002)); see also United States v. Malone,
    
    815 F.3d 367
    , 370 (7th Cir. 2016). A written appellate waiver
    signed by the defendant will typically be voluntary and
    knowing, and thus enforceable through dismissal of a subse-
    quent appeal. United States v. Williams, 
    184 F.3d 666
    , 668 (7th
    Cir. 1999).
    Here, Galloway does not dispute that he voluntarily and
    knowingly agreed to the waiver in his plea agreement—a
    sensible concession after his plea colloquy. Galloway instead
    argues the waiver, according to its own terms, does not apply.
    See Garza v. Idaho, No. 17-1026, 
    2019 WL 938523
    , at *4 (U.S.
    Feb. 27, 2019) (“As courts widely agree, a valid and enforcea-
    ble appeal waiver only precludes challenges that fall within
    its scope.”) (internal punctuation marks and citation omitted);
    see also United States v. Chapa, 
    602 F.3d 865
    , 868 (7th Cir. 2010).
    Galloway asserts the district court did not impose a “sentence
    higher or lower than any recommendation of either party”
    because it followed the government’s recommendation for a
    120-month prison term and he (allegedly) did not make any
    “recommendation” whatsoever.
    6                                                         No. 18-1304
    We interpret plea agreements—including appellate
    waivers contained within them—according to ordinary
    principles of contract law. Malone, 815 F.3d at 370. Unambig-
    uous terms must be given their plain meaning. Id. But we
    consider the parties’ reasonable expectations and construe
    ambiguous terms in the light most favorable to the defendant.
    United States v. O’Doherty, 
    643 F.3d 209
    , 217 (7th Cir. 2011); see
    also United States v. Quintero, 
    618 F.3d 746
    , 751 (7th Cir. 2010).
    The language used in this appellate waiver is unusual.1 If
    the district court did not deviate from “any recommendation”
    made by either party regarding sentencing, then the waiver is
    not triggered. Thus, the viability of Galloway’s appeal relies
    on his premise that his lawyer’s sentencing arguments did not
    constitute a recommendation because they did not include a
    specific proposal for a certain length of incarceration. We see
    no authority for such a restrictive interpretation of the term
    “recommendation.”
    True, sentencing recommendations often take the form of
    a requested term of imprisonment, which frequently includes
    a number or range of months. See, e.g., Santobello v. New York,
    
    404 U.S. 257
    , 259 (1971) (government “recommended the max-
    imum one-year sentence”); United States v. Peterson, 
    891 F.3d 296
    , 300 (7th Cir. 2018) (defendant filed a “recommendation”
    asking “for a sentence of only one day time served”). But the
    word “recommendation” (as used in the context of federal
    sentencings) does not exclusively refer to a proposed length
    of custody: other suggestions regarding the terms of a
    1  Counsel for both parties represented to the court at oral argument
    that, in their experience, the waiver language at issue is uncommon in
    federal plea agreements and perhaps a unique local practice.
    No. 18-1304                                                     7
    defendant’s sentence count as well. See, e.g., United States v.
    Smith, 
    906 F.3d 645
    , 648 (7th Cir. 2018) (referring to proposed
    supervised release conditions as part of a “sentencing recom-
    mendation”); United States v. Stochel, 
    901 F.3d 883
    , 887 (7th Cir.
    2018) (calling proffered offense level calculations “sentencing
    recommendations”); United States v. Harris, 
    843 F.3d 311
    , 313
    (7th Cir. 2016) (describing a joint “recommendation” regard-
    ing criminal history calculations); United States v. Morris, 
    836 F.3d 868
    , 869 (7th Cir. 2016) (explaining a plea agreement
    required the government “to make several specific sentencing
    recommendations” on different issues).
    Although Galloway’s lawyer may not have spelled out the
    number of months he proposed Galloway should spend
    behind bars, he unmistakably advocated for a
    below-guideline sentence. He told the district court, “[T]he
    findings of the probation officer clearly overstate the events
    that took place that night and can and should be addressed
    by way of a departure by this Court.” Defense counsel
    concluded his argument by saying, “While I agree the
    criminal history speaks for itself, I also think there’s a whole
    lot more to this story and how this fit[s] together, and I do
    think Jason is an appropriate person for the Court to issue a
    departure on.” Galloway’s lawyer’s comments can be read
    only as a request that the district court sentence Galloway to
    something less than the 120-month statutory maximum. Such
    statements constitute a “recommendation” for purposes of
    the plea agreement. See Recommendation, BLACK’S LAW
    DICTIONARY (10 ed. 2014) (“A specific piece of advice about
    what to do, esp. when given officially.”); see also Recommend,
    BALLENTINE’S LAW DICTIONARY (3d ed. 2010) (“To advise in
    favor of a course of action to be taken.”); Recommend,
    WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1961)
    8                                                  No. 18-1304
    (“[T]o mention or introduce as being worthy of acceptance,
    use, or trial.”).
    To be sure, there exists a grey area between simple oral
    advocacy at a hearing and making a sentencing “recommen-
    dation.” Compare United States v. Lewis, 
    842 F.3d 467
    , 475 (7th
    Cir. 2016) (holding the government did not make a
    recommendation when describing the defendant’s conduct as
    “horrific,” “egregious,” “aggravated,” etc.) with United States
    v. Salazar, 
    453 F.3d 911
    , 914 (7th Cir. 2006) (noting the
    government may breach a commitment to recommend a
    particular sentence by “requesting a light sentence while
    simultaneously arguing forcefully that a defendant is
    vicious”). But even if Galloway’s lawyer did not understand
    he was making a recommendation, this would not render the
    term “recommendation” ambiguous. Cf. ANTONIN SCALIA &
    BRYAN A. GARNER, READING LAW 31–32 (2012) (distinguishing
    ambiguity from vagueness and noting “[a] word or phrase is
    ambiguous when the question is which of two or more
    meanings applies; it is vague when its unquestionable mean-
    ing has uncertain application to various factual situations”);
    Vesuvius USA Corp. v. American Commercial Lines LLC, 
    910 F.3d 331
    , 334 (7th Cir. 2018) (recognizing a term is not ambiguous
    merely because the parties disagree as to the proper interpre-
    tation). Galloway’s interpretation proposes he could have his
    cake and eat it too: defense counsel could advocate for a
    below-guideline prison term so long as he avoided magic
    words triggering the appellate waiver. Such a strained
    interpretation of “recommendation” is not reasonable.
    In short, the argument by Galloway’s lawyer asking the
    district court to depart from the guideline range qualifies as a
    “recommendation” within the plain meaning of the plea
    No. 18-1304                                                    9
    agreement’s appellate waiver. Although the waiver language
    used in this plea agreement is anomalous, that does not
    render Galloway’s voluntary and knowing waiver of his
    appellate rights any less valid or enforceable. Cf. Williams, 
    184 F.3d at 669
     (“[T]he fact that we could envision a more precise
    colloquy does not alone render this appeal waiver invalid.”).
    III.
    Because Galloway waived his appellate rights, we have no
    occasion to reach his merits arguments. United States v.
    Jemison, 
    237 F.3d 911
    , 916 (7th Cir. 2001). This appeal is
    DISMISSED.