United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2004 Decided December 10, 2004
No. 03-3149
UNITED STATES OF AMERICA,
APPELLEE
v.
JAKE WEST ,
APPELLANT
Consolidated with
No. 03-3150
Appeals from the United States District Court
for the District of Columbia
(No. 01cr00292-01)
(No. 02cr00218-02)
Jack R. Ormes argued the cause and filed the briefs for
appellant. Phillis Payne entered an appearance.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher, Roy W. McLeese,
III, and Steven W. Pelak, Assistant U.S. Attorneys. Thomas J.
Tourish, Jr., Assistant U.S. Attorney, entered an appearance.
2
Before: GINSBURG, Chief Judge, and HENDERSON and
ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Appellant Jake West pled
guilty to two charges related to the embezzlement of funds from
a union pension fund. He later asked the district court to allow
him to withdraw his plea; the court refused. West now urges us
to reverse that ruling, and also presents several challenges to his
sentence. We find that the district court did not abuse its
discretion in denying West’s motion to withdraw his plea. With
regard to the sentence, we decide that under the plea agreement
West has waived the right to appeal. Since he offers no reasons
why we should not treat the waiver as valid, we honor it and
uphold the sentence.
I.
Jake West is the former president of the International
Association of Bridge, Structural, Ornamental and Reinforcing
Iron Workers (IWU). In December 2001, the government
charged him in a 51-count indictment with conspiracy,
embezzlement from the IWU, making false statements in
Department of Labor (DOL) reports, and obstruction of justice.
The indictment alleged that West had appropriated union funds
for his personal benefit and had covered up his activities by
filing false and misleading reports with the DOL. A second
indictment, filed in August 2002, charged both West and a
former IWU General Secretary, LeRoy Worley, with conspiracy,
embezzlement from the union, and embezzlement from the
union’s pension fund. According to the government, West
arranged to have Worley paid a full pension from the IWU’s
retirement plan even though he did not meet the applicable
3
requirements; Worley, in exchange, dropped his bid to challenge
West for presidency of the union.
Trial on the charges contained in the second indictment
began with jury selection on October 15, 2002. Ten days later
the jury was sworn, and West changed his mind about going to
trial. He instead agreed to plead guilty to embezzlement from
a pension fund, 18 U.S.C. § 664, and to one count of making a
false statement in a DOL report, 29 U.S.C. § 439(b). In return,
the government dismissed all remaining charges against him.1
The plea agreement that West signed includes an
integration clause providing that “[t]he terms of this written
Agreement constitute the entire plea offer and agreement in this
matter.” Appellee’s Record Material (RM) at 7 (Plea
Agreement). The agreement twice recites that no “promises,
conditions, understandings, or agreements” have been made or
entered into by the government other than those in the
agreement itself. Id. at 8. The government “reserves allocution
or its right to speak at Mr. West’s sentencing,” id. at 5, and the
government and West “make no promises to one another and
make no agreement with one another with regard to defendant
West’s sentencing in these matters,” id. at 6. In addition, the
agreement states that “West understands that his sentence will
be imposed in accordance with the United States Sentencing
Guidelines.” Id. at 6. Finally, under the agreement West
explicitly waives the right to appeal his sentence unless the court
sentences him to a prison term in excess of the statutory
maximum or departs upward beyond the Sentencing Guidelines
range. Id. at 6–7.
1
Worley proceeded to trial and, after a mistrial for a hung jury,
reached an agreement with the government to have the charges
dismissed in exchange for restitution.
4
The district court conducted a hearing to ensure that
West was aware of the terms of the agreement and that he was
entering his plea knowingly and voluntarily. West was
represented at this hearing by counsel. With respect to the
integration clause, the court asked West directly, “Other than the
promises in this plea agreement, are there any other promises
that have induced . . . you [to] plead guilty?” West responded,
“no.” Plea Hr’g Tr. at 20.
At the plea hearing, the government also proffered the
factual basis for its charges against West. As trustee of the
IWU’s retirement plan, West was familiar with plan provisions
setting out criteria for receiving benefits, including one that
restricts normal pension benefits to persons 60 years of age or
older. In December 1998, West arranged for Worley, who was
younger than 60 at the time, to receive a normal pension. The
apparent purpose of this maneuver was to persuade Worley to
retire early and thus remove a rival in the next election for IWU
president. By the government’s calculation, Worley received
$59,380 in excess pension benefits between December 1998 and
November 1999.
As to the false statement count, the government’s proffer
states that in December 1997 West signed and declared true and
correct a Form LM-2 Labor Organization Annual Report that
was submitted to DOL. The LM-2 stated that disbursements to
the IWU president, other than salary and expense allowance
payments, totaled $8,556; the true figure, which West knew, was
close to $98,500. Disbursements to Worley and three other
IWU officials were also understated on the 1997 LM-2 by
amounts ranging from $25,000 to $70,000. According to the
proffer, the union’s LM-2 filings for 1995 and 1996 also
underreported the true amounts of disbursements to the president
by “more than $70,000 and $80,000, respectively.” Proffer of
Facts at 6.
5
On August 19, 2003, as the date of West’s sentencing
approached, the probation office issued its final presentence
investigation report. The report calculated West’s sentence
under the Sentencing Guidelines. It first assigned West a base
offense level of four. Enhancements were then applied for
several aspects of West’s crimes: twelve points for the loss
associated with his embezzlement, which exceeded $500,000,
U.S.S.G. § 2B1.1 (1998); four points for being the organizer or
leader of the embezzlement, § 3B1.1(a); two points for abusing
a position of trust, § 3B1.3; two points for involvement in an
offense of more than minimal planning, § 2B1.1(b)(4)(A); and
two points for obstructing justice by providing false information
to the grand jury, § 3C1.1. The total offense level was therefore
26. For criminal history category I, this yielded a sentence
under the relevant Guidelines of 63 to 78 months. Because the
statutory maximum for violations of 18 U.S.C. § 664 is five
years and for violations of 29 U.S.C. § 439(b) one year, the
longest sentence West could receive was 72 months.
The government filed its sentencing memorandum in late
August 2003. The memorandum agreed with the presentence
report “in all material aspects” and requested that West receive
a sentence of 63 to 72 months in prison and be ordered to pay
restitution. Sentencing Memorandum at 2. It also offered an
extensive view of West’s criminal activity. West was revealed
as not an especially frugal union president. He spent, by the
government’s calculation, more than $51,000 in IWU funds on
dinners, golf, and items for his home in Virginia. He allowed
relatives to dine and go shopping in Washington, D.C., at the
union’s expense. He had the union pay for golf vacations in
Palm Springs, California, for both his personal waiter and his
tailor. These expenses went unreported in the union’s LM-2
filings.
6
West also had other top officials pay his tabs so as to
conceal the true amount of his own expenses. An opponent had
used West’s reported disbursements against him in the 1991
campaign for IWU president; West hoped to avoid a repeat of
this by shifting reported expenses to lower-ranking officials. In
many cases, these officials did not report these expenses at all
and, according to the memorandum, were given license to spend
the union’s money freely themselves. The government argued
that all these disbursements — both those unreported and those
attributed to other officials — should be treated as relevant
conduct for purposes of calculating West’s sentence.
The memorandum made similar contentions with respect
to West’s deal with Worley. In addition to the $59,384
embezzled from the retirement plan, West arranged to have
$74,620 improperly paid to Worley from the union’s
supplemental pension plan. At West’s direction, Worley also
continued to receive a salary and expense allowance from IWU
— amounting to about $217,000 — for more than a year after
his retirement. In all, the government calculated that conduct
relevant to West’s offense resulted in a loss of at least $555,000.
It is also significant that, according to the government’s
memorandum, West collaborated in almost every aspect of these
schemes with IWU General Counsel Victor Van Bourg.
On September 22, 2003, almost a year after entering his
guilty plea, West moved the district court to allow his plea to be
withdrawn or, alternatively, to order specific performance of the
plea agreement. In the event the court was inclined to deny
these requests, he asked that it hold an evidentiary hearing to
consider the evidence against him. He advanced two arguments
in support of the motion. First, he claimed that the prosecutor
who negotiated the plea agreement had assured him that, in
West’s phrasing, “there would be no further reference” to the
dropped charges. RM at 18 (West Declaration). As he saw it,
7
the government was now reneging on this promise by, in effect,
re-introducing these charges at sentencing. Second, West
argued that he did not know that his conduct as union president
was illegal because he relied on attorney Van Bourg’s
assurances that — again, West’s words — “all was proper and
legal and that I had nothing to worry about.” Id.
The district court denied West’s motion. Applying our
framework in United States v. Hanson, 339 F.3d 983 (D.C. Cir.
2003), the court ruled that West had not shown that his plea was
tainted or presented a viable claim of innocence so as to warrant
withdrawal. It also found that the government would suffer
prejudice by having to reconstruct a complex criminal case that
West’s guilty plea cut short eleven months before. Finally, the
court saw no reason to hold an evidentiary hearing or to order
specific performance of the plea agreement.
The district court then proceeded to sentence West.
West challenged four aspects of the presentence report’s
recommendations: the amount of loss, the four-point
enhancement for his leadership role, the two-point increase for
obstruction of justice, and the failure to deduct points for
acceptance of responsibility. The court rejected all of West’s
claims. It found facts by the preponderance of the evidence that
supported the application of the leadership and obstruction of
justice enhancements. With respect to amount of loss, the court
determined that the government had sufficiently proven that the
loss caused by West’s conduct was more than $500,000 but less
than $800,000, entailing a 12-point enhancement. The
government’s calculations were established “through pleadings,
through testimony, [and] through trial exhibits before the
Court.” Sentencing Hr’g Tr. at 39. West was also denied any
reduction for acceptance of responsibility due to his last-minute
attempt to withdraw his plea. Ultimately, however, the court
departed downward from the Guidelines range because of
8
West’s poor health. He was sentenced to 36 months in prison
followed by two years’ supervised release and ordered to pay
approximately $185,000 in fines and restitution. West appeals.
II.
West first challenges the district court’s refusal to grant
his motion to withdraw his plea. A defendant may withdraw a
guilty plea before sentencing if he “can show a fair and just
reason for requesting the withdrawal.” FED . R. C RIM . P.
11(d)(2)(B). We look to three considerations in reviewing
denials of motions to withdraw: “(1) whether the defendant has
asserted a viable claim of innocence; (2) whether the delay
between the guilty plea and the motion to withdraw has
substantially prejudiced the government’s ability to prosecute
the case; and (3) whether the guilty plea was somehow tainted.”
Hanson, 339 F.3d at 988; United States v. McCoy, 215 F.3d 102,
106 (D.C. Cir. 2000). The last of these is the most important,
see United States v. Horne, 987 F.2d 833, 837 (D.C. Cir. 1993),
and usually requires a showing that the taking of the plea did not
conform to the requirements of Federal Rule of Criminal
Procedure 11. “[A] defendant who fails to show some error
under Rule 11 has to shoulder an extremely heavy burden if he
is ultimately to prevail.” United States v. Cray, 47 F.3d 1203,
1208 (D.C. Cir. 1995). We review refusals of motions to
withdraw for abuse of discretion. United States v. Weaks, No.
03–3048, slip op. at 4 (D.C. Cir. Nov. 12, 2004); Hanson, 339
F.3d at 988.
A. We begin then with the issue of taint. West contends
that the government promised not to use any of the dismissed
charges against him at sentencing and that its failure to carry out
this promise taints his plea. Along with his motion in the district
court, West submitted an affidavit stating that the prosecutor
“assured me that there would be only the two counts and that the
9
others would be dismissed and that there would be no further
reference to them.” RM at 18 (West Declaration).2
As the district court recognized, the suggestion that such
a promise was made is belied by the plea agreement itself, which
could hardly be clearer on this point. It contains an integration
clause that states: “The terms of this written Agreement
constitute the entire plea offer and agreement in this matter.”
RM at 7 (Plea Agreement). It makes clear that “[o]ther than the
offer and agreements noted in this document, there are no other
promises, conditions, understandings, or agreements by Jake
West or the [United States Attorney’s Office (USAO)].” Id. at
8. Under the heading, “Defendant’s Acceptance of Guilty Plea
Agreement,” where West signed the agreement, it again reads,
“Absolutely no promises, agreements, understandings, or
conditions have been made or entered into in connection with
my decision to plead guilty except those set forth in this Guilty
Plea Agreement.” Id. What the agreement does say about
West’s sentencing is similarly unequivocal: “The USAO and
defendant West make no promises to one another and make no
agreement with one another with regard to defendant West’s
sentencing in these matters.” Id. at 6. It also states that the
government “reserves allocution or its right to speak at Mr.
West’s sentencing.” Id. at 5.
2
Several months later, West submitted additional affidavits from his
daughter and his attorney in support of a motion in the district court
for bail pending appeal. We need not consider these affidavits
because they were not part of the record before the court when it
denied West’s motion to withdraw his plea. See FED. R. APP . P. 10(a);
Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir.
1988) (“Papers submitted to the district court after the ruling that is
challenged on appeal should be stricken from the record on appeal.”).
Even if we were to consider them, they would not affect our
disposition of West’s appeal.
10
By itself, this language argues strongly against the
existence of any unwritten promises by either party to the
agreement. See United States v. Ahn, 231 F.3d 26, 36 (D.C. Cir.
2000); United States v. Alegria, 192 F.3d 179, 185 (1st Cir.
1999). Inferring such promises is virtually foreclosed where, as
here, the district court has also conducted a flawless plea
proceeding at which the defendant was made fully aware of, and
assented to, the important terms of the agreement. See Ahn, 231
F.3d at 36. At the plea hearing, the court reviewed all the
relevant aspects of the agreement with West, including the
integration clause and the disclaimer of promises with regard to
sentencing. West, represented by counsel at the hearing, was
then asked whether any other promises induced him to plead
guilty; he replied “no.” If the government had made any
unwritten promises to West about his sentence, this was the time
for West (or his counsel) to say something. Neither did. In
consequence, the district court did not abuse its discretion in
deciding that West’s plea was not tainted by any unwritten
promise by the government.
B. Having found no taint to West’s plea, we next
consider whether West presents a sufficiently viable claim of
innocence to meet the “heavy burden” imposed by Cray. 47
F.3d at 1208. A general denial of guilt is not enough; West
“must affirmatively advance an objectively reasonable argument
that he is innocent.” Id. at 1209. West argues that the district
court erred in ruling that his reliance on Van Bourg, IWU’s
General Counsel, did not amount to a viable claim of innocence.
West argues that “at all times” that he was involved in the acts
for which he pled guilty “he was acting in accord with his
attorney’s advice.” RM at 13 (Motion to Withdraw Plea).
According to West, Van Bourg “consistently advised” him that
all his actions were proper and that “no criminal liability could
result.” Id.
11
The district court gave two reasons for rejecting West’s
advice-of-counsel claim. First, it found that the defense was not
applicable to 18 U.S.C. § 664, on the ground that the offense of
embezzlement from a pension fund does not require that the
defendant know that his conduct was illegal. Second, it ruled
that the defense was inapplicable in any case because here Van
Bourg was acting not as a legitimate attorney but as an
accomplice, who would have been indicted along with West had
he not died. The court made this finding by the preponderance
of the evidence based on Van Bourg’s untruthful responses to
government subpoenas and on evidence that he pressured union
accountants to cover up improper disbursements.
We agree that West does not present a viable claim of
innocence because Van Bourg was properly deemed to have
acted as his accomplice.3 The defense of advice of counsel
necessarily fails where counsel acts as an accomplice to the
crime. See United States v. Carr, 740 F.2d 339, 347 (5th Cir.
1984) (“When the lawyer is a partner in a venture, takes a share
of the profits, or is not a lawyer who had no interest save to give
sound advice for a reasonable fee the advice of counsel defense
is unavailable.”) (internal quotation marks omitted).
The proffers included with the guilty pleas of other top
union officials, as outlined in the government’s sentencing
memorandum, adequately show that Van Bourg was a co-
participant in the embezzlement scheme. Van Bourg was
integral to the decision to cover-up the true amount of
disbursements to West in the union’s LM-2 Reports. At a
3
We therefore do not address whether the defense of advice of
counsel would have applied had West’s attorney not been deemed an
accomplice. See United States v. DeFries, 129 F.3d 1293, 1308 (D.C.
Cir. 1997) (good faith reliance on advice of counsel is a defense to the
charge of embezzlement under 29 U.S.C. § 501(c)).
12
meeting between IWU officials and the union’s accountants,
Van Bourg indicated that he did not want to comply with LM-2
reporting requirements. He then asked the accountants what
they would say if subpoenaed to testify about the meeting.
When Van Bourg was told by the accountants that they would
testify truthfully, he recommended that West fire them.
The evidence suggests that Van Bourg was also a
participant in the arrangement to secure full pension benefits for
Worley. Van Bourg had earlier advised local union agents, in
the presence of West, that it was a crime to inflate pension
benefits. West nevertheless states that Van Bourg “assured
[West] that he could make it all legal.” RM at 17 (West
Declaration). A defendant may avail himself of an advice of
counsel defense only where he makes a complete disclosure to
counsel, seeks advice as to the legality of the contemplated
action, is advised that the action is legal, and relies on that
advice in good faith. See SEC v. Savoy Industries, 665 F.2d
1310, 1314 n.28 (D.C. Cir. 1981). Van Bourg’s mere assurance
that he could “make it all legal” falls well short of these
requirements and, in light of the other evidence on which the
district court relied, does nothing to undermine the conclusion
that Van Bourg was himself part of the criminal enterprise. The
district court was warranted in finding that Van Bourg acted as
an accomplice and properly concluded that West could not
present an advice-of-counsel defense. It was therefore no abuse
of discretion for the district court to rule that West did not
present a viable claim of innocence.
C. Finally, the district court placed some reliance on the
possible prejudice the government would suffer if West were
allowed to withdraw his plea. While prejudice may properly be
taken into account, it “has never been dispositive in our cases.”
Hanson, 339 F.3d at 988; see also Cray, 47 F.3d at 1208.
Although it certainly appears that the government would be
13
prejudiced here, we need not consider the matter further. West
has not shown that his plea was tainted, nor has he satisfied
Cray’s “heavy burden” by presenting a viable claim of
innocence. These considerations suffice to decide that the
district court did not abuse its discretion in refusing West’s
withdrawal motion. See Cray, 47 F.3d at 1208.4
III.
The remainder of West’s appeal involves several
challenges to his sentence. He offers three reasons why his
sentence should be vacated: (1) the district court relied on
improper evidence in applying enhancements to his sentence
under the Sentencing Guidelines; (2) the court did not give him
an opportunity to cross-examine other union officials about the
proffers submitted with their guilty pleas, in purported violation
of his Sixth Amendment Confrontation Clause right; and (3) his
sentence violated his Sixth Amendment right to a jury trial, as
understood in Blakely v. Washington, 124 S. Ct. 2531 (2004),
because it was based on facts that were neither admitted nor
found by a jury beyond a reasonable doubt. Before we reach
any of these arguments, however, we must first address whether
West has waived the right to appeal his sentence.
4
We are easily persuaded that the district court did not abuse its
discretion in denying West an evidentiary hearing or the alternative
relief of specific performance. A district court need hold an
evidentiary hearing on a plea withdrawal only where the defendant
offers “substantial evidence that impugns the validity of the plea.”
United States v. Redig, 27 F.3d 277, 280 (7th Cir. 1994) (internal
quotation marks omitted). As explained, that was not the case here.
With regard to specific performance, West does not allege any breach
of the express terms of the plea agreement, and since the district court
properly found no enforceable promise by the government regarding
sentencing, such a promise obviously could not provide the basis for
any form of relief.
14
The plea agreement between the government and West
contains an explicit waiver of the right to appeal the sentence,
which reads:
Mr. West is aware that federal law, specifically 18
U.S.C. § 3742, affords him the right to appeal his
sentence in these matters. Knowing that, Mr. West
waives the right to appeal his sentence or the manner in
which it was determined pursuant to 18 U.S.C. § 3742,
except to the extent that (a) the Court sentences Mr.
West to a period of imprisonment longer than the
statutory maximum or (b) the Court departs upward from
the applicable Sentencing Guideline range pursuant to
the provisions of U.S.S.G. § 5K2.
RM at 6–7 (Plea Agreement).5
The government asks us to give this waiver full effect.
It argues that we have enforced a similar waiver before, see In
re Sealed Case, 283 F.3d 349, 355 (D.C. Cir. 2002), and that
other circuits have honored such waivers in certain
circumstances, see, e.g., United States v. Hahn, 359 F.3d 1315,
1324–28 (10th Cir. 2004); United States v. Hernandez, 242 F.3d
110, 113 (2d Cir. 2001). Sealed Case helps the government, but
does not resolve the issue. First, in Sealed Case, the defendant
agreed, after he was tried and convicted, to waive the right to
appeal that conviction. His waiver thus applied to a proceeding
that had already taken place, not, as here, to one that had yet to
occur. Moreover, the only ground on which the defendant in
Sealed Case challenged his waiver was that his plea had not
5
Under the agreement, West reserves the right to attack his sentence
collaterally under 28 U.S.C. § 2255, but only “if new and currently
unavailable information becomes known to him.” RM at 7 (Plea
Agreement).
15
been taken in accordance with Rule 11. If the plea was not valid
then the plea agreement — including the waiver of the right to
appeal — would not be enforceable. Once we determined that
there was no Rule 11 error, the defendant offered no other
reason to deny effect to the waiver with respect to the
defendant’s other claims.
West, for his part, offers no reason why we should not
honor the waiver here. His opening brief simply raises his
challenges to the sentence, without addressing the explicit
waiver barring such challenges. In his reply brief, he reserves
one short paragraph for a response to the government’s
contentions. He first asserts that the waiver is void because the
entire plea agreement was the result of “fraud in the
inducement,” i.e., because it was the product of false promises
by the government regarding his sentence. Reply Br. at 8. This
is merely a reprise of his argument that his plea was tainted —
one we have already rejected.
West then suggests that his Blakely challenge falls within
an exception to the waiver allowing appeal if “the Court
sentences Mr. West to a period of imprisonment longer than the
statutory maximum.” This argument, of course, does not deny
that a waiver of appeal rights is valid, but only that this
particular waiver does not cover West’s Blakely claim. If
anything, this argument implicitly acknowledges the waiver’s
validity.6
6
At oral argument, counsel argued that the waiver’s exception for
upward departures under § 5K2 of the Guidelines permits an appeal of
the enhancements applied to West’s sentence. When the court pointed
out the distinction between sentencing enhancements and upward
departures under the Guidelines, counsel acknowledged his mistake
and conceded the point. He did not challenge the waiver’s validity.
16
We find that we need not question the validity of West’s
waiver because he has not. Ordinarily, we “refuse to disturb
judgments on the basis of claims not adequately briefed on
appeal.” McBride v. Merrell Dow and Pharmaceuticals, Inc.,
800 F.2d 1208, 1210 (D.C. Cir. 1986). This practice is rooted in
the Federal Rules of Appellate Procedure, see Rule 28(a)(9)(A)
(appellant’s brief must contain his “contentions and reasons for
them”), and is essential to our system of appellate review,
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The
premise of our adversarial system is that appellate courts do not
sit as self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued by
the parties before them.”). Rulings on issues that have not been
fully argued run the risk of being “improvident or ill-advised.”
McBride, 800 F.2d at 1211. There is even greater cause to be
wary where, as here, the consequences of our ruling are
potentially far-reaching. See Alabama Power Co. v. Gorsuch,
672 F.2d 1, 7 (D.C. Cir. 1982) (per curiam). A decision as to
whether, and in what circumstances, waivers of appeal rights are
valid could affect a large number of criminal defendants. We
therefore decline to decide the issue without adequate briefing,
and treat the waiver as binding on West because he has not
contested it.
The upshot is that West may only appeal his sentence on
a ground that falls within one of the waiver’s exceptions.
Because he does not argue that an exception applies either to his
challenge to the district court’s application of the Guidelines or
to his Confrontation Clause claim, his waiver bars these claims.
The lone remaining issue is whether he can fit his Blakely claim
into the exception allowing him to appeal if “the Court sentences
[him] to a period of imprisonment longer than the statutory
maximum.” RM at 7 (Plea Agreement). West contends that the
term “statutory maximum,” as used in the plea agreement,
should be read as it is “defined in Blakely.” Reply Br. at 8. If
17
the exception is understood in this way, West argues, his Blakely
claim survives.
This requires some explication. The Supreme Court held
in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that,
except for the fact of a prior conviction, “any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” In Apprendi, “statutory maximum” had a
relatively clear meaning: it was the maximum penalty allowed
by the criminal statute that the defendant was charged with
violating. See id. at 468–69 (judge’s finding of fact raised
statutory maximum from 10 to 20 years). In Blakely the
Supreme Court applied Apprendi to a state sentencing guidelines
scheme, and explained that, in that context, “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely, 124 S. Ct.
at 2537.
West claims that the Sentencing Guidelines operate in
the same manner as the statute struck down in Blakely and are
therefore unconstitutional. Most important for present purposes
he contends that this claim is not barred by his appeal waiver
because the waiver’s “statutory maximum” exception
contemplates precisely this kind of Blakely-based challenge to
the Guidelines.
The question is one of interpretation, informed by
principles of contract law. Ahn, 231 F.3d at 35; United States v.
Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). Applying those
principles, we find it implausible that at the time of the plea
agreement the parties could have understood “statutory
maximum” to mean “statutory maximum for Apprendi
purposes,” as West suggests. If the exception means what West
18
says, it could only relate to a challenge under Apprendi. But this
court certainly did not give West any reason to believe that the
exception’s language would preserve an Apprendi attack on the
Guidelines. Indeed, our decisions, like those of other circuits,
consistently refused to apply Apprendi to the Guidelines or to
interpret “statutory maximum” as West urges us now to do.
United States v. Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001);
In re Sealed Case, 246 F.3d 696, 698–99 (D.C. Cir. 2001) (“it is
hard to see how the [Supreme Court] could have intended to
mandate the heightened standard for application of the
Guidelines’ enhancement instructions when the resulting
sentence remains within the statutory maximum”).
Indeed, West himself seems to have read the exception
differently before Blakely. In his opening brief, submitted
before Blakely was decided, he did not raise any Apprendi claim
at all; it was only in his reply brief — and after the Supreme
Court decided Blakely — that he argued that the exception
covered a challenge to the Guidelines. See RESTATEMEN T
(SECOND) OF CONTRACT S § 202 cmt. b (1981) (“In interpreting
the words and conduct of the parties to a contract, a court seeks
to put itself in the position they occupied at the time the contract
was made.”).
Furthermore, reading the “statutory maximum”
exception as preserving an Apprendi attack on the Guidelines is
flatly inconsistent with the rest of West’s plea agreement. See
RESTATEMENT (SECOND) OF CONTRACTS § 202(2) (1981) (“A
writing is interpreted as a whole, and all writings that are part of
the same transaction are interpreted together.”). The same
section of the agreement sets out the maximum fines and periods
of imprisonment for violations of 18 U.S.C. § 664 and 29 U.S.C.
§ 439(b). See RM at 6 (Plea Agreement). The most reasonable
inference is that “statutory maximum” in the waiver exception
refers to these. In addition, as the agreement makes clear, West
19
“understands that his sentence will be imposed in accordance
with the United States Sentencing Guidelines . . . and that the
Judge, in his sole discretion, will determine the facts relevant to
sentencing under the Sentencing Guidelines.” Id. Having
consented in such plain terms to sentencing under the
Guidelines, West would have us believe that he nevertheless
reserved a constitutional challenge to the Guidelines through an
exceedingly subtle employment of “statutory maximum.” We
find such a reading of the agreement untenable.
We emphasize that we decide here only the narrow issue
of whether the exception to West’s waiver of appeal rights
allows him to attack his sentence under Blakely and Apprendi.
It does not. We do not reach either the question whether such
waivers are valid as a general matter — because appellant does
not argue otherwise — or whether by simply pleading guilty
West waived, or could have waived, his Blakely rights. What
we do decide is that a waiver of the right to appeal a sentence
will be enforced if the defendant gives us no argument why it
should not be, and that this particular waiver covers all the
sentencing claims West seeks to advance on appeal.
Affirmed.