United States v. Jason Galloway , 917 F.3d 604 ( 2019 )

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.