United States v. Joshua Henry , 702 F.3d 377 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1683
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSHUA W. H ENRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:10-cr-50038-1—Frederick J. Kapala, Judge.
A RGUED O CTOBER 24, 2012—D ECIDED D ECEMBER 7, 2012
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Joshua W. Henry pleaded guilty to
two counts of using a communication facility to further
the commission of a drug felony. As part of his plea
agreement, he waived the right to appeal any part
of his sentence. The district court sentenced him
to 96 months’ imprisonment to run consecutive to his
undischarged state sentence. Henry argues on appeal
that his plea was not knowingly given because the
2 No. 12-1683
district court did not explain that his federal sentence
could be consecutive to his undischarged state sen-
tence. He also argues that his waiver of appellate rights
is ineffective because it stands or falls with the plea.
I.
On December 5, 2008, Henry pleaded guilty to several
drug offenses in Iowa state court. On March 2, 2009, the
state court sentenced him to 10 years’ imprisonment,
suspended, and 5 years’ probation. Later that same
day, Henry and Larry Parazine took a trip from
Dubuque, Iowa, to the Chicago, Illinois, area. On the
way, Henry used his cellular telephone at least twice
to contact his drug supplier in the Chicago area. Henry
purchased heroin and cocaine from his supplier, intending
to distribute the drugs in Iowa. While Henry and Parazine
were driving through Jo Daviess County in the northwest
corner of Illinois, they were stopped by law enforcement.
As a result, the Iowa state court revoked Henry’s probation
and sentenced him to 10 years’ imprisonment.
Henry was subsequently charged in federal court
with drug conspiracy and possession offenses. On Decem-
ber 7, 2011, he pleaded guilty to a superseding information
that charged him with two counts of using a telephone to
distribute cocaine in violation of 21 U.S.C. § 843(b). As part
of his written plea agreement, Henry “agreed that the
sentence imposed by the Court shall include a term of
imprisonment in the custody of the Bureau of Prisons of 96
months. Other than the agreed term of incarceration, [he]
agreed that the Court remains free to impose the sentence
No. 12-1683 3
it deems appropriate.” The plea agreement states that it “is
entirely voluntary,” and contains the following provisions:
c. Waiver of appellate and collateral rights. De-
fendant . . . understands he is waiving all appel-
late issues that might have been available . . .
[D]efendant knowingly waives the right to appeal
his conviction . . . and any part of the sentence (or
the manner in which that sentence was deter-
mined), including any term of imprisonment and
fine within the maximums provided by law, in
exchange for the concessions made by the
United States in this Plea Agreement . . . .
d. Defendant understands that by pleading
guilty he is waiving all the rights set forth in the
prior paragraphs. Defendant’s attorney has ex-
plained those rights to him, and the consequences
of his waiver of those rights.
On December 7, 2011, the district court conducted a
thorough plea colloquy. The court asked Henry his age,
the extent of his education, whether he had any difficulty
reading or writing, and whether he was under the in-
fluence of any drugs or alcohol or taking any med-
ications, and found him competent to plead guilty.
The court asked him whether he was satisfied with his
counsel’s representation, and Henry responded in the
affirmative. The court read Henry the superseding in-
dictment and asked if he understood the charges. Henry
answered, “Yes.”
The court turned to the plea agreement and asked
Henry if his signature was on the agreement. Henry
4 No. 12-1683
responded affirmatively. The court inquired if anyone
had forced Henry to sign the agreement or if any other
agreements or promises had been made to him that
were not in the agreement. Henry responded, “No.”
Then the court asked if Henry had read the agree-
ment before signing it, had discussed all aspects of
it with his counsel, and understood all of its terms.
Henry responded affirmatively. In discussing sentencing,
the court noted the parties’ agreement to a sentence
of 96 months and stated that if the court accepts the
agreement and imposes a sentence consistent with
that agreement, Henry would not be able to withdraw
his guilty plea. Henry said he understood.
Then the court explained to Henry that “[o]rdinarily
you would have the right to appeal your plea of guilty,
conviction, and any sentence that I impose. However, by
entering into this plea agreement and by pleading guilty,
in exchange for concessions made by the government,
you will have waived or given up your right to appeal
your plea of guilty, conviction, and sentence.” The court
asked Henry if he understood everything the court had
said about his appeal rights, and Henry answered, “Yes.”
Henry agreed with the government’s summary of the
evidence and pleaded guilty to both counts against him.
The court found that Henry “has been advised of his
rights and understands them,” that he “is aware of the
nature of the charges, the consequences of the plea, and
the possible punishment, that there have been no
threats against [him] to coerce him to plead guilty, and
that the plea of guilty is a knowing and voluntary plea
supported by an independent basis in fact containing
No. 12-1683 5
each of the essential elements of the offenses.” The
court accepted the plea.
On March 12, 2012, the district court sentenced Henry
to 48 months’ imprisonment on each count to run con-
secutively for a total of 96 months and ordered that
the sentence be served consecutively to his undischarged
state sentence. Henry appealed.
II.
We review the enforceability of an appellate waiver in
a plea agreement de novo. United States v. Alcala, 678
F.3d 574, 577 (7th Cir. 2012). We will enforce an appel-
late waiver “when [its] ‘terms are express and unambigu-
ous, and the record shows that the defendant knowingly
and voluntarily entered into the agreement.’ ” United
States v. Kilcrease, 665 F.3d 924, 927 (7th Cir. 2012) (quoting
United States v. Aslan, 644 F.3d 526, 534 (7th Cir. 2011)).
A district court’s decision to impose a sentence con-
currently or consecutively to an undischarged term
of imprisonment “necessarily involves ‘the manner in
which that sentence is determined.’ ” Aslan, 644 F.3d at
534. Thus, the court’s decision “to impose a consecutive
sentence easily comes within the language of the [appel-
late] waiver, which prevents [Henry] from challenging
a sentence within the statutory maximum or the manner
in which that sentence was determined.” Id. The district
court sentenced Henry within the statutory maximum
for a conviction under 21 U.S.C. § 843(d) (not more than
4 years), sentencing him to 48 months’ imprisonment
6 No. 12-1683
on each of two counts for a total of 96 months. The
court imposed no fine. Thus, there is no issue that the
term of imprisonment (or fine) exceeded the maximum
provided by law.
Henry argues that he “agreed to waive all rights to
appeal his sentence . . . based on the information that
he was going to receive [a] 96 months [sic] sentence” and
“[b]ecause the court sentenced [him] to a longer-term
[sic] than was anticipated in the plea agreement . . . his
waiver of appellate rights is ineffective.” Yet “unantici-
pated sentences do not create grounds for negating the
terms of a plea agreement.” United States v. Sines, 303
F.3d 793, 799 (7th Cir. 2002) (citation omitted).
Henry also argues that his guilty plea and appellate
waiver were not knowingly entered into because the
district court did not inform him of the maximum
penalty he was facing if he pleaded guilty. But, as Henry
concedes, the court did inform him of the maximum
penalty, stating: “On each of these counts, you could
be sentenced to a term of imprisonment not to exceed
four years.” It is the court’s failure to advise him
of the possibility that his federal sentence could run
consecutive to his undischarged state sentence that
he complains about.
The record shows that Henry knowingly and
voluntarily entered into the plea agreement. The dis-
trict court conducted a thorough plea colloquy, ensuring
that Henry was advised of his rights and understood
them and that he was aware of the nature of the charges,
the consequences of his plea, and the possible punish-
No. 12-1683 7
ment. The court also ensured that Henry understood the
terms of his plea, explicitly covering the appellate waiver,
and agreed to those terms. And the court made sure
that Henry understood that other than his agreement
with the government regarding a sentence of 96 months,
the decision as to the penalty was within the court’s
discretion. Henry was represented by counsel and has
not challenged counsel’s performance, which supports
the conclusion that Henry’s waiver was knowing and
strategic. See Alcala, 678 F.3d at 579. The court also
found that Henry’s guilty plea was knowing and volun-
tary. The court’s findings are well supported in the rec-
ord. Henry’s guilty plea is valid, and so, too, is his ap-
pellate waiver.
In any event, the district court was not required to
advise Henry that his federal sentence might be
imposed to run consecutive to his undischarged state
sentence. Faulisi v. Daggett, 527 F.2d 305, 309 (7th Cir.
1975) (concluding that “the possibility that a federal
sentence might be ruled to run consecutively to a state
sentence being served is not a ‘consequence’ of a plea
of guilty concerning which the court must first address
the defendant before accepting such plea”); see also
United States v. Ray, 828 F.2d 399, 418 (7th Cir. 1987)
(stating that “whether the federal sentence runs con-
currently with or consecutively to the state sentence is
not a direct consequence of the plea”); accord United
States v. General, 278 F.3d 389, 395 (4th Cir. 2002)
(“Rule 11 . . . does not require a district court to inform
the defendant of mandatory consecutive sentencing.”);
cf. Fed. R. Crim. P. 11(b)(1) (outlining 14 subjects the
8 No. 12-1683
district court is required to address in the plea colloquy;
whether a sentence may run consecutively to a state
sentence is not one of them).
III.
This appeal is D ISMISSED.
12-7-12