United States v. Jamar Gage ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-3044 September Term, 2021
FILED ON: NOVEMBER 30, 2021
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMAR GAGE, ALSO KNOWN AS GO, ALSO KNOWN AS GO GO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00112-3)
Before: KATSAS and WALKER, Circuit Judges, and GINSBURG, Senior Circuit Judge.
JUDGMENT
We heard this appeal on the record from the United States District Court for the District of
Columbia and the parties’ briefs. We fully considered the issues and determined that a published
opinion is unnecessary. See D.C. Cir. R. 36(d).
We AFFIRM Gage’s sentence.
* * *
On January 23, 2020, Jamar Gage pleaded guilty to conspiring to distribute, and possessing
with the intent to distribute, one kilogram or more of a substance or mixture containing a detectable
amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iv), and 846.
As part of his plea agreement, Gage waived “the right to appeal the sentence in this case,
including but not limited to any term of imprisonment . . . and the manner in which the sentence
was determined, except to the extent the Court sentences [Gage] above the statutory maximum or
guidelines range determined by the Court.” S.A. 21.
Gage’s sentence — the statutory minimum of 10 years — is less than the statutory
maximum (life) and within the United States Sentencing Guidelines range determined by the
District Court (10 years, to 11 years and 5 months).
Despite that, Gage seeks to appeal his sentence. He argues that his criminal history score
was improperly calculated and that he was eligible for a safety-valve sentence below the otherwise-
applicable statutory minimum.
He has, however, waived his right to raise those arguments on appeal. See United States
v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).
* * *
Reviewing Gage’s appeal waiver de novo, we ask three questions: (1) does the waiver
unambiguously foreclose the defendant’s claims; (2) was the defendant’s waiver knowing,
intelligent, and voluntary; and (3) were the proceedings in the District Court free of a colorable
claim of “ineffective assistance of counsel in agreeing to the waiver” and free of a miscarriage of
justice caused by a material procedural error at sentencing? United States v. Hunt, 843 F.3d 1022,
1027 (D.C. Cir. 2016) (question 1); United States v. Lee, 888 F.3d 503, 506 (D.C. Cir. 2018)
(question 2); United States v. Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015) (cleaned up) (question
3).
As to the first question, we will not dismiss “a criminal defendant’s appeal if his waiver
only arguably or ambiguously forecloses his claims.” Hunt, 843 F.3d at 1027. The relevant
portion of Gage’s appeal waiver (quoted above) explicitly states that Gage was giving up the right
to appeal his sentence with two exceptions. The first exception covers a claim that the District
Court sentenced him above the statutory maximum. The second exception covers a claim that the
District Court sentenced him above the Guidelines range it determined.
Here, Gage makes neither of those claims. Instead, on appeal, he argues for a new
Guidelines range that would trigger his eligibility for a safety-valve sentence. His appeal waiver
therefore unambiguously forecloses this appeal.
Turning to the next question, we “must analyze the entire record” to determine whether a
defendant knowingly, intelligently, and voluntarily waived his right to appeal. Lee, 888 F.3d at
507. Although “[a] written plea agreement in which the defendant waives the right to appeal is
strong evidence,” we also “examine, among other things, the clarity of the written plea agreement,
the defendant’s signature on the agreement, defense counsel’s signature on the agreement, the
defendant’s statements at the plea hearing, defense counsel’s statements at the plea hearing, and
the judge’s questioning and statements at the plea hearing.” Id.
Here, Gage’s appeal waiver was knowing, intelligent, and voluntary. To begin with, the
written plea agreement was clear. Both Gage and his attorney signed it, acknowledging that they
had read it and discussed it with each other. In addition, at the plea hearing, the District Court
placed Gage under oath, and based upon Gage’s statements and the parties’ representations, it
determined that: Gage was competent; Gage understood everything required by Federal Rule of
Criminal Procedure 11(b)(1); Gage’s plea was voluntary; and there was a factual basis for Gage’s
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plea. Finally, after all that, the District Court went even further and said to Gage: “Now, if I
accept your guilty plea, which I am ready to do, I want you to understand that it’s very hard to
withdraw it. So you can’t change your mind. . . . It’s an important decision for you. All right.
Do you want me to accept your guilty plea at this time?” S.A. 73. Gage replied, “Yes, Your
Honor. Please.” Id.
Finally, we will not enforce an otherwise valid appeal waiver “if the defendant makes a
colorable claim he received ineffective assistance of counsel in agreeing to the waiver or if the
sentencing court’s failure in some material way to follow a prescribed sentencing procedure results
in a miscarriage of justice.” Adams, 780 F.3d at 1183 (cleaned up). Gage makes none of those
claims.
We therefore affirm Gage’s sentence.
* * *
This disposition is unpublished. See D.C. Cir. R. 36(d). We direct the Clerk to withhold
this mandate until seven days after resolution of a timely petition for panel or en banc rehearing.
See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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