United States v. Nathan A. Madsen ( 2018 )


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  •                 Case: 17-12602    Date Filed: 09/13/2018   Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-12602
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 8:16-cr-00127-CEH-TGW-1
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    NATHAN A. MADSEN,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (September 13, 2018)
    Before MARCUS, JORDAN, and ROSENBAUM, Circuit Judges.
    PER CURIAM:
    Nathan Madsen pled guilty to enticement of a minor to engage in sexual
    activity and possession of child pornography. In exchange for his guilty plea, the
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    government dismissed the original indictment and agreed not to pursue other
    charges related to his conduct. Mr. Madsen’s written plea agreement included a
    sentence appeal waiver and permitted an appeal only if his sentence exceeded the
    guideline range as calculated by the district court, exceeded the statutory maximum
    sentence, violated the Eighth Amendment, or if the government appealed.
    At sentencing, the district court heard testimony and arguments from the
    parties, including a victim impact statement from Mr. Madsen’s minor victim in
    the child pornography offense.      The district court calculated Mr. Madsen’s
    advisory sentencing guideline range at life imprisonment, but, after considering the
    testimony and 18 U.S.C. § 3553(a) factors, varied downward and imposed a total
    sentence of 210 months’ imprisonment.
    Mr. Madsen raises two issues on appeal. First, he contends that his due
    process rights were violated by the district court’s admission and consideration of
    the victim’s impact statement. Second, he argues that he received ineffective
    assistance of counsel. After careful review, we dismiss his appeal as to the due
    process claim because it is barred by his sentence appeal waiver. We decline to
    consider his ineffective assistance of counsel claim because the record is not
    sufficiently developed on direct appeal.
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    I
    We review the validity of a sentence appeal waiver de novo. See United
    States v. DiFalco, 
    837 F.3d 1207
    , 1215 (11th Cir. 2016). Valid waivers must be
    made knowingly and voluntarily, so we require that the government establish
    either that “(1) the district court specifically questioned the defendant concerning
    the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear
    from the record that the defendant otherwise understood the full significance of the
    waiver.” 
    Id. Mr. Madsen
    acknowledges that he “signed a valid, enforceable
    appeal waiver,” Initial Br. at 26, and we agree. The record demonstrates that the
    district court explained and specifically questioned Mr. Madsen concerning the
    sentence appeal waiver and that Mr. Madsen indicated that he understood he was
    forfeiting his right to appeal, except in limited circumstances not implicated here.
    See D.E. 115 at 33–34.
    Despite the valid waiver, Mr. Madsen contends that he may still appeal his
    sentence because his due process rights were violated when the district court
    allowed the prosecution to read a statement written by Mr. Madsen’s minor victim.
    Mr. Madsen is correct that his “waiver of the right to appeal his sentence does not
    mean [ ] that appellate review is completely unavailable.”         United States v.
    Bushert, 
    997 F.2d 1343
    , 1350 (11th Cir. 1993). We have recognized, for example,
    that a defendant may appeal his sentence if it was based on a constitutionally
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    impermissible factor such as race, 
    id. at 1350
    n.18, or in “extreme circumstances”
    such as a sentence to “public flogging.” United States v. Howle, 
    166 F.3d 1166
    ,
    1169 n.5 (11th Cir. 1999).
    Unfortunately for Mr. Madsen, his due process argument does not raise a
    constitutionally impermissible factor like race or an extreme circumstance like
    public flogging. See generally Payne v. Tennessee, 
    501 U.S. 808
    , 827 (1991)
    (holding that admission of victim impact evidence at death penalty sentencing
    phase does not per se violate the Eighth Amendment); United States v. Horsfall,
    
    552 F.3d 1275
    , 1284 (11th Cir. 2008) (finding no plain error in admission of victim
    impact statement in child pornography case). In fact, we have held that such
    appeal waivers may “bargain away [the] right to raise constitutional issues[.]”
    United States v. Bascomb, 
    451 F.3d 1292
    , 1297 (11th Cir. 2006). And, we have
    dismissed appeals raising due process concerns due to these waivers. See United
    States v. Rubbo, 
    396 F.3d 1330
    , 1335 (11th Cir. 2005) (dismissing appeal due to
    waiver that included Due Process and Sixth Amendment claims under Apprendi v.
    New Jersey, 
    530 U.S. 466
    (2000), and its progeny). Mr. Madsen knowingly and
    voluntarily waived his right to appeal his sentence, and that waiver included his
    due process claim. Accordingly, we dismiss his appeal on this issue.
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    II
    Next, we turn to Mr. Madsen’s ineffective assistance of counsel claim. “We
    will not generally consider claims of ineffective assistance of counsel raised on
    direct appeal where the district court did not entertain the claim nor develop a
    factual record.” United States v. Patterson, 
    595 F.3d 1324
    , 1328 (11th Cir. 2010).
    Mr. Madsen, to his credit, recognizes this usual limitation. Nevertheless, he argues
    that the record is sufficiently developed in this case. We disagree.
    He points to two parts of the record to support his argument. First, he
    contends that one of his responses at the sentencing hearing “supports that he did
    not appreciate the significance of his plea agreement, or understand how the
    sentencing guidelines appl[ied] to his case.” Initial Br. at 34. Second, he points to
    his “decision to plead guilty to a life imprisonment range,” which he describes as
    “confounding.” See 
    id. at 35.
    From these two facts, Mr. Madsen asks us to
    hypothesize, or presume, that his counsel was ineffective.
    The problem with this argument is that, although it points to allegedly-
    ineffective acts in the record, it does not shed light on his counsel’s strategy or
    whether the alleged errors were prejudicial. These are Mr. Madsen’s burden to
    prove. See Massaro v. United States, 
    538 U.S. 500
    , 505 (2003) (“Under Strickland
    v. Washington, 
    466 U.S. 668
    (1984), a defendant claiming ineffective counsel must
    show that counsel’s actions were not supported by a reasonable strategy and that
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    the error was prejudicial.”). Even if we accepted his argument that the record
    showed “seemingly unusual or misguided action by counsel,” we do not know
    whether there was “a sound strategic motive” or whether that action “was taken
    because the counsel’s alternatives were even worse.” See 
    id. For these
    reasons,
    “[t]he preferred means for deciding a claim of ineffective assistance of counsel is
    through a 28 U.S.C. § 2255 motion[.]” 
    Patterson, 595 F.3d at 1328
    . Through this
    procedure, Mr. Madsen may develop an appropriate record to support his claim.
    “We do not suggest that [Mr. Madsen’s] counsel was ineffective, but [he] may
    raise his claim in a 28 U.S.C. § 2255 motion if he so chooses and timely files it.”
    United States v. Campo, 
    840 F.3d 1249
    , 1257 n.5 (11th Cir. 2016).
    III
    In sum, we dismiss Mr. Madsen’s appeal in part and affirm the judgment of
    the district court.
    APPEAL DISMISSED IN PART; AFFIRMED IN PART.
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