United States v. Garrett Smith , 759 F.3d 702 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3350
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARRETT DAVARRASS SMITH,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:11-CR-140 — Joseph S. Van Bokkelen, Judge.
ARGUED OCTOBER 2, 2013 — DECIDED JULY 17, 2014
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Garrett Smith pleaded guilty to a
charge that he possessed with the intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),
and the district court ordered him to serve a prison term of 168
months. Despite having expressly waived his right to appeal
the sentence in his written plea agreement, Smith nonetheless
has appealed, contending that he was deprived of the effective
2 No. 12-3350
assistance of counsel when his counsel failed to challenge the
district court’s finding that he was a career offender. Smith
urges us to overlook the waiver on the ground that his attor-
ney’s alleged ineffectiveness at sentencing was “patent.” We
enforce the appellate waiver and dismiss the appeal.
I.
A tip identified Smith to federal agents as a possible cocaine
dealer. Armed with a search warrant, they arrived at his
apartment to discover 806.5 grams of powder cocaine, 148.6
grams of crack cocaine, 603.4 grams of marijuana, and a loaded
Glock handgun. Smith admitted to the agents that the drugs
were his and that he intended to distribute them. He was
eventually charged in a three-count indictment of possessing
with the intent to distribute cocaine, crack cocaine, and
marijuana, all in violation of section 841(a)(1).
Smith’s retained counsel negotiated a plea agreement which
was committed to writing. Smith agreed to plead guilty to
Count 1 of the indictment, the cocaine count, to cooperate with
the government, and to waive his appellate rights. The
government agreed in exchange to dismiss Counts 2 and 3 of
the indictment, not to pursue enhanced statutory penalties
based on Smith’s prior narcotics conviction, see 21 U.S.C. § 851,
to recommend that Smith receive maximum credit for accep-
tance of responsibility, see U.S.S.G. § 3E1.1(b), to consider filing
a motion to reduce the Sentencing Guidelines range in recogni-
tion of Smith’s cooperation, see U.S.S.G. § 5K1.1, and to
recommend that the court impose a sentence at the bottom of
the advisory Guidelines range.
No. 12-3350 3
The provision of the plea agreement concerning Smith’s
appellate rights is quite clear as to what Smith was waiving.
As we rest our decision on the waiver, the text of this provision
merits quoting in full:
I understand that the law gives a convicted person the
right to appeal the conviction and the sentence imposed;
I also understand that no one can predict the precise
sentence that will be imposed, and that the Court has
jurisdiction and authority to impose any sentence
within the statutory maximum set for my offense(s) as
set forth in this plea agreement; with this understanding
and in consideration of the government’s entry into this
plea agreement, I expressly waive my right to appeal or
to contest my conviction and my sentence or the man-
ner in which my conviction or my sentence was deter-
mined or imposed, to any Court on any ground, includ-
ing any claim of ineffective assistance of counsel unless
the claimed ineffective assistance of counsel relates
directly to this waiver or its negotiation, including any
appeal under Title 18, United States Code, Section 3742
or any post-conviction proceeding, including but not
limited to, a proceeding under Title 28, United States
Code, Section 2255[.]
R. 15 at 5 ¶ 7i.
At the change of plea hearing, the district court engaged in
a thorough colloquy with Smith before accepting his guilty
plea. During that colloquy, in response to the court’s questions,
Smith confirmed that he had discussed all aspects of the
appellate waiver with his counsel and that he had agreed to the
4 No. 12-3350
waiver. In response to the court’s questions, Smith acknowl-
edged that he was giving up his right to appeal both his
conviction and sentence and the manner in which his sentence
was imposed. R. 54 at 19-21. The court specifically admonished
Smith that he was surrendering the right to claim that his
counsel was ineffective, except insofar as the claimed ineffec-
tiveness related to the waiver itself or the negotiation of the
waiver. Id. at 21. Smith indicated that he understood this aspect
of the waiver, confirmed that he had consented to it, and
agreed with the court’s statement that as a consequence of the
waiver he “would most likely be prohibited from appealing the
sentence” that the court would later impose upon him. Id. At
the conclusion of the colloquy, the court accepted Smith’s
guilty plea but postponed final acceptance of the plea agree-
ment pending preparation and review of the presentence
report (“PSR”) by the probation officer. See U.S.S.G. § 6B1.1(c).
The PSR determined that Smith qualified as a career
offender, in view of his prior federal narcotics conviction and
his prior conviction in Indiana state court for reckless homi-
cide, which convictions counted as convictions for a controlled
substance offense and a crime of violence, respectively, for
purposes of the career offender guideline. See U.S.S.G.
§§ 4B1.1(a), 4B1.2. This determination increased Smith’s total,
adjusted offense level from 29 to 31 and increased his criminal
history category from IV to VI. As a result, the advisory
Guidelines range increased from 121-151 months to 188-235
months.
Although neither party filed written objections to the PSR,
when the district court convened the sentencing hearing, Smith
himself voiced an objection to the PSR’s findings that he had
No. 12-3350 5
possessed a firearm during the instant narcotics offense, see
U.S.S.G. § 2D1.1(b)(1), and that he had maintained a premises
(his apartment) for the purpose of distributing controlled
substances, see U.S.S.G. § 2D1.1(b)(12). Although each of these
findings called for a two-level increase to the offense level,
Smith’s counsel noted that it was Smith’s career offender status
that ultimately established Smith’s total offense level (because
the career offender guideline specifies a particular offense level
that will apply if it is greater than the offense level as otherwise
calculated, see § 4B1.1(b)) and that, consequently, Smith’s
objections would have no impact on the offense level. Coun-
sel’s observation prompted the court to ask Smith whether he
had any objection to the career offender finding, and Smith
stated, twice, that he had no such objection. R. 55 at 17. (Smith
later did voice some disagreement with the career offender
designation as an unfair rhetorical description of him as a
person but not as a mistaken Guidelines determination.)
Nonetheless, the court directed counsel for both parties and the
probation officer to address Smith’s objections to the firearm
and maintenance-of-premises findings in writing, and recessed
the sentencing hearing for two weeks for that purpose. Smith’s
counsel submitted a statement to the probation officer indicat-
ing that Smith had stipulated to a two-point enhancement for
possession of the firearm in the plea agreement and noting that
counsel could discern no basis for contesting the maintenance-
of-premises enhancement. R. 35 at 2. The probation officer
reaffirmed the propriety of both enhancements. Id. at 2-3.
When the court reconvened the sentencing hearing, the
court formally accepted the plea agreement, overruled Smith’s
objections to the PSR, and adopted the findings and calcula-
6 No. 12-3350
tions of the PSR, which produced an advisory sentencing range
of 188 to 235 months. In light of Smith’s cooperation, the
government asked the court pursuant to section 5K1.1 for a
one-level reduction in Smith’s offense level, which reduced the
range to 168 to 210 months, and asked the court to impose a
sentence at the bottom of that range. The court granted the
request for an offense-level reduction and, after hearing from
both defense counsel (who urged a 120-month sentence) and
Smith himself, imposed a sentence of 168 months. R. 56.
II.
Smith’s appeal is premised on the notion that he is not,
contrary to the district court’s finding, a career offender.
Specifically, he contends that his prior conviction for reckless
homicide does not qualify as a crime of violence for purposes
of the career offender guideline. If he were correct in that
assertion (a point we do not reach), then he would lack the
second prior conviction necessary to classify him as a career
offender. See § 4B1.1(a)(3). Of course, Smith did not make this
objection below. This is the springboard for his ineffectiveness
argument: Smith’s position, in essence, is that a competent
attorney would have recognized the problem with the reckless
homicide conviction as a predicate for the career offender
finding, and that his counsel was therefore ineffective for not
objecting. On that basis, he asks us to vacate his sentence and
remand for resentencing.
The obvious obstacle to the appeal lies in Smith’s waiver of
his appellate rights. Smith does not wish to be released from
the plea agreement, which he entered into knowingly and
voluntarily. He concedes that the appellate waiver contained
No. 12-3350 7
within that agreement on its face precludes the sort of ineffec-
tiveness claim he is attempting to pursue in this appeal. He
makes no argument that his counsel was ineffective in negoti-
ating the plea agreement (including the waiver), which is the
only iteration of ineffectiveness that the waiver preserves. Nor,
obviously, is he arguing that his sentence exceeded the
statutory maximum or was the product of an impermissible
factor, such as race. Collectively, these are the only sorts of
grounds which we have indicated may be sufficient to over-
come a broad appellate waiver such as the one Smith know-
ingly and voluntarily agreed to. See, e.g., United States v. Adkins,
743 F.3d 176, 192–93 (7th Cir. 2014), cert. denied, 2014 WL
2210626 (U.S. June 23, 2014); Dowell v. United States, 694 F.3d
898, 902 (7th Cir. 2012); Keller v. United States, 657 F.3d 675, 681
(7th Cir. 2011).
Smith instead urges us to recognize a new exception for the
“patent” ineffectiveness of counsel at sentencing. In his view,
it should have been obvious to Smith’s counsel below that
reckless homicide does not qualify as a crime of violence, and
given the significant impact of the career offender determina-
tion on Smith’s sentencing range, his counsel was not merely
ineffective, but patently so, in neglecting to challenge it. On
that basis, he urges us not to enforce the waiver.
We can find no support in the language of the plea agree-
ment or in our cases for such an exception. When he signed the
agreement, Smith “expressly waive[d] [his] right to appeal or
to contest [his] conviction and [his] sentence or the manner in
which [his] conviction or [his] sentence was determined or
imposed, to any Court on any ground, including any claim of
ineffective assistance of counsel unless the claimed ineffective
8 No. 12-3350
assistance of counsel relates directly to this waiver or its
negotiation.” R. 15 at 5 ¶ 7i. Smith received substantial benefits
in exchange for his agreement to the waiver and the other
provisions of the plea agreement, including the government’s
agreement not to seek increased statutory penalties, to recom-
mend that he receive an additional reduction in his offense
level for his acceptance of responsibility, to consider asking for
a further reduction in the offense level for providing substan-
tial assistance to the government (which it did recommend),
and to recommend a sentence at the bottom of the advisory
Guidelines range. Plea agreements, although they are unique
in the sense that they are negotiated, executed, approved, and
enforced in the context of a criminal prosecution that affords
the defendant a due process right to fundamental fairness, are
contracts nonetheless. See, e.g., United States v. Bryant, 750 F.3d
642, 649 (7th Cir. 2014); United States v. Munoz, 718 F.3d 726,
729 (7th Cir. 2013); United States v. Schilling, 142 F.3d 388,
394–95 (7th Cir. 1993). They should be interpreted, therefore,
according to their terms. United States v. Hernandez, 544 F.3d
743, 750–51 (7th Cir. 2008). When the defendant pursuant to the
plea agreement has knowingly and voluntarily waived his
appellate rights, and the terms of that waiver are express and
unambiguous, we will enforce those terms. E.g., United States
v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010). Here the waiver
could not be more clear. By waiving “any claim of ineffective
assistance of counsel,” other than one relating to the waiver or
its negotiation, Smith waived all manner of ineffectiveness
claims, however the asserted ineffectiveness might be
characterized—patent, subtle, or otherwise.
No. 12-3350 9
There is no doubt that a defendant may waive his right to
challenge a sentence not yet imposed, including challenges
based on the ineffectiveness of his counsel at sentencing. See
Nunez v. United States, 495 F.3d 544, 546, 548 (7th Cir. 2007)
(ineffectiveness claim premised on attorney’s conduct post-
dating plea is foreclosed by waiver), judgment vacated and
remanded on other grounds, 554 U.S. 911, 128 S. Ct. 2990 (2008).
We have repeatedly enforced such waivers and dismissed
appeals contending that the defendant was deprived of the
effective assistance of sentencing counsel. See United States v.
Jemison, 237 F.3d 911, 917–18 (7th Cir. 2001); Bridgeman v.
United States, 229 F.3d 589, 592–93 (7th Cir. 2000); Mason v.
United States, 211 F.3d 1065, 1069–70 (7th Cir. 2000); United
States v. Joiner, 183 F.3d 635, 644–45 (7th Cir. 1999); see also
Nunez v. United States, 546 F.3d 450 (7th Cir. 2008) (counsel was
not ineffective in failing to file appeal that was barred by
appellate waiver).
The sole type of ineffectiveness claim we have said that a
defendant may not waive is an ineffectiveness claim having to
do with the waiver (or the plea agreement as a whole) and its
negotiation. See Hurlow v. United States, 726 F.3d 958, 964–66
(7th Cir. 2013). Again, this is the one variant of ineffectiveness
that Smith’s appellate waiver expressly preserved. But it is
distinctly not the type of ineffectiveness claim that Smith is
attempting to pursue.
Smith may think that the court committed a mistake in
classifying him as a career offender, but we have held that
appeal waivers preclude appellate review even of errors that
are plain in retrospect. See, e.g., Keller, supra, 657 F.3d at 682 n.5;
10 No. 12-3350
United States v. Cavender, 228 F3d 792, 803 (7th Cir. 2000);
United States v. Kratz, 179 F.3d 1039, 1042–43 (7th Cir. 1999);
United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997);
see also United States v. Andis, 333 F.3d 886, 892 (8th Cir. 2013)
(en banc) (collecting cases). The point of an appeal waiver, after
all, is to prospectively surrender one’s right to appeal, no
matter how obvious or compelling the basis for an appeal may
later turn out to be. See United States v. Wenger, 58 F.3d 280, 282
(7th Cir. 1995).
Smith’s appeal implicates his constitutional right to
effective assistance of counsel, but simply because the error of
which he complains involves a constitutional right does not
relieve him of the waiver. We have repeatedly said that a
defendant’s freedom to waive his appellate rights includes the
ability to waive his right to make constitutionally-based
appellate arguments. See, e.g., Adkins, 743 F.3d at 193; United
States v. Davey, 550 F.3d 653, 658 (7th Cir. 2008); Nunez, 495
F.3d at 548; United States v. Cieslowski, 410 F.3d 353, 364 (7th
Cir. 2005); United States v. Nave, 302 F.3d 719, 720 (7th Cir.
2002); United States v. Behrman, 235 F.3d 1049, 1051 (7th Cir.
2000). The exceptions to this rule are few in number and are
limited to matters that implicate the fundamental fairness of
the proceeding. See Adkins, 743 F.3d at 192–93; Keller, supra, 657
F.3d at 681. Smith’s appeal does not fall within one of those
limited exceptions.
Nothing we have said should be construed as implying that
the district court in fact did err by classifying Smith as a career
offender or that Smith’s counsel was ineffective in not objecting
to the classification. The briefing suggests that the issue may
No. 12-3350 11
not be as straightforward as Smith’s appellate counsel portrays
it. Our point is that however clear a sentencing error the
defendant believes the district court to have committed, or
however obvious an error he believes his counsel committed in
not objecting to the court’s sentencing decision, when the
defendant has knowingly and voluntarily waived his right to
appeal such errors, the obviousness of the error does not
support overlooking the waiver.
III.
Smith knowingly and voluntarily waived his appellate
rights, including his right on appeal to contend that his counsel
below was ineffective as to any matter other than the waiver
and his negotiation of it. He is, consequently, barred from
pursuing the instant appeal. The appeal is therefore
DISMISSED.