United States v. Jarvis Molden ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2738
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jarvis Molden
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: June 14, 2019
Filed: October 29, 2019
[Unpublished]
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Before GRUENDER, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
Jarvis Molden pleaded guilty to aiding and abetting bank robbery in violation
of 18 U.S.C. §§ 2113(a) and 2, and aiding and abetting the possession of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.
The district court1 sentenced him to 96 months in prison for the bank robbery count
and 84 months for the firearm possession count, to be served consecutively. Molden
appeals his bank robbery sentence, arguing that the district court abused its discretion
in applying a two-point enhancement for reckless endangerment during flight. See
USSG § 3C1.2. The Government argues Molden waived this argument in his plea
agreement. We agree.
We review the validity of an appeal waiver in a plea agreement de novo.
United States v. Seizys, 864 F.3d 930, 931 (8th Cir. 2017). First, “[we] confirm that
the [issue raised on] appeal falls within the scope of the waiver.” United States v.
Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc). Second, we ask whether “the
waiver and the plea agreement were entered into knowingly and voluntarily.” Id. at
190. Third, if the above conditions are satisfied, we ensure that the enforcement of
the waiver would not “result in a miscarriage of justice.” Id. The Government bears
the burden on all three questions. United States v. Snelson, 555 F.3d 681, 685 (8th
Cir. 2009).
Molden’s plea agreement contained a section devoted to the “Waiver of
Appellate and Post-Conviction Rights.” There, Molden specifically “waive[d] the
right to directly appeal [his] conviction and sentence pursuant to 28 U.S.C. § 1291
and/or 18 U.S.C. § 3742(a).” The agreement goes on to list a few narrow exceptions
to the waiver, such as the right to appeal a sentence which exceeds the statutory
maximum and the right to collaterally attack a sentence due to “ineffective assistance
of counsel,” but none of these apply here. Instead, Molden’s argument that the
district court erred in applying a two-level sentencing enhancement is grounded in 18
U.S.C. § 3742 and is squarely encompassed by the waiver.
1
The Honorable Susan O. Hickey, Chief Judge for the United States District
Court for the Western District of Arkansas.
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Molden’s waiver was also knowing and voluntary. At his change of plea
hearing, Molden stated under oath that he had read his plea agreement, that his
attorneys had explained it to him and he understood it, that he knew he was giving up
the right to directly appeal his conviction and sentence, that he signed the plea
agreement voluntarily and of his own free will, and that he was satisfied with his
attorneys. See Plea Hearing Tr. at 12-16.
Finally, even if Molden could show that the district court erred when it applied
the reckless endangerment enhancement to his sentence, our enforcement of the
waiver would not amount to a miscarriage of justice. See Andis, 333 F.3d at 892
(noting that “an allegation that the sentencing judge misapplied the Sentencing
Guidelines or abused his or her discretion” does not implicate the miscarriage of
justice exception).
Accordingly, Molden’s appeal is dismissed.
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