United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2008 Decided April 14, 2009
No. 07-3077
UNITED STATES OF AMERICA,
APPELLEE
v.
MARIBEL A. GUILLEN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 07cr00100-01)
Tony Axam Jr., Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was
A.J. Kramer, Federal Public Defender.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III, Florence
Pan, and Ronald Wesley Sharpe, Assistant U.S. Attorneys.
Before: GINSBURG, TATEL and BROWN, Circuit Judges.
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Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: As part of her agreement to
plead guilty to one count of wire fraud, Maribel Guillen
waived her right to appeal her sentence if it was within the
range indicated by the United States Sentencing Guidelines.
Guillen received such a sentence but appeals nonetheless,
contending the waiver is not enforceable. We join the eleven
other circuits with jurisdiction over criminal appeals in
holding such waivers are generally enforceable.
I. Background
Guillen entered into an agreement with the Government
whereby she would plead guilty to one count of wire fraud,
which she committed as part of a scheme to embezzle funds
from her former employer. The agreement also provided she
[W]aives the right to appeal her sentence or the
manner in which it was to be determined
pursuant to 18 U.S.C. § 3742, except to the
extent that (a) the Court sentences Ms. Guillen
to a period of imprisonment longer than the
statutory maximum or (b) the Court departs
upward from the applicable Sentencing
Guideline range.
Guillen duly pled guilty. During the plea colloquy, the
court told Guillen “you would always have the right to take
an appeal if you thought my sentence was illegal.” The court
also explained the method it would use to sentence Guillen,
which “start[s] with a presumption that [a sentence within the
Guideline range] is reasonable.” Later in the hearing, the
court said:
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I do want to talk about [the waiver provision].
As I understand this ... and this paragraph is a
little bit different than the usual one, [Guillen]
is giving up her right to appeal any sentence
she receives unless I sentence her to a period
longer than 20 years or unless I depart upwards
from the guideline range.
Then, in light of Guillen’s waiver, the court corrected its prior
statement that Guillen “would always have the right” to
appeal an illegal sentence. Guillen said she understood the
waiver provision and the court accepted her plea.
The court later determined the applicable Guideline range
was 15 to 21 months imprisonment. At a sentencing hearing
the court considered Guillen’s arguments that she ought to
receive a sentence below the Guideline range, but concluded a
sentence within “the guideline range is reasonable and meets
the requirements of 18 U.S.C. § 3553.” The court thereupon
sentenced Guillen to the minimum Guideline sentence of 15
months imprisonment and to two years of supervised release
and ordered her to pay restitution. Guillen appealed the
sentence.
II. Analysis
Guillen first argues the district court erred insofar as it
believed a sentence within the Guideline range was
presumptively reasonable. See Rita v. United States, 127 S.
Ct. 2456, 2465 (2007) (“[T]he sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines
sentence should apply”). She further contends the district
court imposed a sentence greater than necessary to
accomplish the purposes of sentencing, contrary to 18 U.S.C.
4
§ 3553(a) (“The court shall impose a sentence sufficient, but
not greater than necessary, to comply with the purposes” of
sentencing). We do not consider these arguments because, as
explained below, we agree with the Government that Guillen
validly waived her right to appeal a sentence within the
Guideline range.
A. General Validity of Pre-sentence Waivers
As the First Circuit has observed, “The basic argument
against presentence waivers of appellate rights is that such
waivers are anticipatory.” United States v. Teeter, 257 F.3d
14, 21 (2001). Accordingly, Guillen argues a defendant
cannot knowingly waive his right to appeal a sentence that
has not yet been imposed. All eleven other courts of appeals
with criminal jurisdiction (including the First) have rejected
this argument and held such waivers are presumptively valid.∗
This court has enforced a waiver of the right to appeal a yet-
to-be-imposed sentence on two occasions, see United States v.
West, 392 F.3d 450, 458-61 (2004); In re Sealed Case, 283
F.3d 349, 355 (2002), but we have not yet determined
“whether such waivers are valid as a general matter.” West,
392 F.3d at 460-61.
∗
See Teeter, 257 F.3d at 21; United States v. Monzon, 359 F.3d
110, 116-17 (2d Cir. 2004); United States v. Khattak, 273 F.3d 557,
562 (3d Cir. 2001); United States v. Brown, 232 F.3d 399, 403 (4th
Cir. 2000); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.
1992); United States v. Fleming, 239 F.3d 761, 763-64, (6th Cir.
2001); United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001);
United States v. Michelsen, 141 F.3d 867, 871 (8th Cir. 1998);
United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000);
United States v. Hahn, 359 F.3d 1315, 1325-26 (10th Cir. 2004) (en
banc) (per curiam); United States v. Howle, 166 F.3d 1166, 1168
(11th Cir. 1999).
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We now agree with our sister circuits that such waivers
generally may be enforced. A defendant may waive his right
to appeal his sentence as long as his decision is knowing,
intelligent, and voluntary. An anticipatory waiver — that is,
one made before the defendant knows what the sentence will
be — is nonetheless a knowing waiver if the defendant is
aware of and understands the risks involved in his decision.
Cf. Brady v. United States, 397 U.S. 742, 748-49 (1970)
(waiver of right to trial by jury); United States v.
Cunningham, 145 F.3d 1385, 1391 (D.C. Cir. 1998) (waiver
of right to counsel). If “the record [shows] that [the
defendant] knows what he is doing and his choice is made
with eyes open,” Cunningham, 145 F.3d at 1391 (internal
quotation marks omitted), then the Court will enforce an
anticipatory waiver.
In addition, we note the right to appeal a sentence is a
creature of statute. See 18 U.S.C. § 3742. It would make
little sense to hold a criminal defendant, who may waive basic
rights guaranteed by the Constitution, may not waive a right
created by statute and hence revocable at will by the
Congress. See Judiciary Act of 1891, 26 Stat. 826, 828. The
defendant cannot be certain of the consequences of waiving
his constitutional right to trial by jury or to be represented by
counsel any more than he can be certain of the consequences
of waiving his right to appeal his sentence. In each situation,
he must evaluate the possibilities open to him and their
associated probabilities and, with the help of counsel, choose
the most favorable alternative. A defendant who waives trial
by pleading guilty, for example, believes the sentence he is
likely to receive as a result (with credit for accepting
responsibility) is more attractive than facing the range of
possibilities — from acquittal on all counts to conviction and
the maximum sentence on all counts — discounted by their
corresponding probabilities. Pleading guilty allows the
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defendant to narrow the range of possible penalties. The
calculation a defendant makes in waiving his right to appeal
his yet-to-be-imposed sentence is fundamentally similar and
ought not to be treated differently.
Allowing a defendant to waive the right to appeal his
sentence also gives him an additional bargaining chip to use
in negotiating a plea agreement with the Government. See
Teeter, 257 F.3d at 22. For example, the prosecutor might be
willing to dismiss a count in exchange for the defendant’s
waiver of his right to appeal his sentence. Indeed, in certain
circumstances an agreement may not be possible if the
defendant may not waive his right to appeal. Allowing the
defendant to waive this right therefore improves the
defendant’s bargaining position and increases the probability
he will reach a satisfactory plea agreement with the
Government.
B. When a Pre-sentence Waiver is not Enforceable
By waiving the right to appeal his sentence, the
defendant does not agree to accept any defect or error that
may be thrust upon him by either an ineffective attorney or an
errant sentencing court. Rather, the defendant waives his
right to contest only a sentence within the statutory range and
imposed under fair procedures; his waiver relieves neither his
attorney nor the district court of their obligations to satisfy
applicable constitutional requirements. Drawing upon the
experience of sister circuits, therefore, we mention some
circumstances that may lead a reviewing court not to enforce
a pre-sentence waiver. See, e.g., United States v. Hahn, 359
F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam);
Teeter, 257 F.3d at 25 n.9-n.10; United States v. Brown, 232
F.3d 399, 403 (4th Cir. 2000); United States v. Michelson,
141 F.3d 867, 872 n.3 (8th Cir. 1998).
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Most obvious, a waiver should not be enforced insofar as
the defendant makes a colorable claim he received ineffective
assistance of counsel in agreeing to the waiver. See, e.g.,
Hahn, 359 F.3d at 1327; Teeter, 257 F.3d at 25 n.9. If such a
claim is upheld, it follows that, because the defendant’s
attorney failed to ensure the defendant understood the
consequences of his waiver, the waiver was not knowing,
intelligent, and voluntary. If, however “a defendant’s
complaints of his counsel’s inadequacy plainly lack merit, a
court cannot allow itself to be manipulated” into voiding a
bargained-for waiver of the right to appeal. Cunningham, 145
F.3d at 1392.
Nor should a waiver be enforced if the sentencing court’s
failure in some material way to follow a prescribed
sentencing procedure results in a miscarriage of justice. If,
for example, the district court utterly fails to advert to the
factors in 18 U.S.C. § 3553(a), then this court may disregard
the waiver and consider the defendant’s argument that the
district court imposed an unlawful sentence. In the same
vein, a defendant does not waive his right to appeal a sentence
that is unlawful because it exceeds the statutory maximum.
See, e.g., Hahn, 359 F.3d at 1327; Teeter, 257 F.3d at 25
n.10; Michelson, 141 F.3d at 872 n.3. Finally, we note a
waiver does not shield from review a sentence colorably
alleged to rest upon a constitutionally impermissible factor,
such as the defendant’s race or religion. See, e.g., Hahn, 359
F.3d at 1327; Teeter, 257 F.3d at 25 n.9; Brown, 232 F.3d at
403; Michelson, 141 F.3d at 872 n.3.
C. Guillen’s Waiver is Valid
We turn now to Guillen’s claim her waiver of the right to
appeal her sentence was not knowing, intelligent, and
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voluntary. As with the validity of a defendant’s waiver of the
right to counsel, our review is de novo. See Cunningham, 145
F.3d at 1392.
In this case, the transcript of the plea hearing
demonstrates that Guillen’s waiver was knowing, intelligent,
and voluntary. Guillen argues her waiver was not made
knowingly because the district court initially said she “would
always have the right to take an appeal if [she] thought [the]
sentence was illegal.” As the Government points out,
however, the court later corrected this statement in light of
Guillen’s waiver. The court explained to Guillen she was
waiving her right to appeal her sentence unless it was above
the statutory maximum or was an upward departure from the
Guideline range. Guillen then said she understood that,
which leaves us with no reason to doubt Guillen’s waiver was
knowing, intelligent, and voluntary.
Guillen makes no argument that the district court failed
to follow a prescribed sentencing procedure resulting in a
miscarriage of justice. Instead, Guillen makes several
arguments that have little relevance to our analysis.
First, Guillen argues the district court voided the waiver
agreement when it told her, at the end of the sentencing
hearing, “You do have the right to take an appeal from this
sentence. If you want to do so you should tell [your attorney],
and you have to let him know within ten days.” This
statement does not undermine the waiver agreement because
it is correct; Guillen was entitled to appeal her sentence if it
was above the statutory maximum or departed upward from
the Guideline range. See United States v. Atterberry, 144
F.3d 1299, 1301 (10th Cir. 1998) (holding similar comment
about right to appeal sentence did not void waiver
agreement). More important, a statement made at the
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sentencing hearing could not have informed (or misinformed)
Guillen’s decision to waive her right to appeal because that
decision was made at the earlier plea hearing. See id.
Next, Guillen argues she is entitled to appeal because she
waived her right to appeal only under 18 U.S.C. § 3742 and
not under 28 U.S.C. § 1291. Unlike § 3742, however, § 1291
does not give a criminal defendant a right to appeal. Rather, §
1291 gives the circuit courts subject matter jurisdiction over
final orders of the district courts, including sentencing orders,
see Hahn, 359 F.3d at 1322.
Finally, Guillen argues her waiver should not be enforced
because the district court impermissibly presumed any
sentence within the Guideline range was reasonable. Here
Guillen points to the district court’s statement at the plea
hearing that it “starts with a presumption” that a sentence
within the Guideline range is reasonable. But see Rita, 127 S.
Ct. at 2465 (“sentencing court does not enjoy the benefit of a
legal presumption that the Guidelines sentence should
apply”). Guillen’s argument that the court impermissibly
applied a presumption of reasonableness to a sentence within
the Guideline range is of the kind a reviewing court need not
consider when the defendant has waived his right to appeal a
sentence or the manner in which it was determined. As stated
above, we will disregard a waiver agreement on account of a
district court’s procedural error only if the error results in a
miscarriage of justice; that the district court presumed any
sentence within the Guideline range would be reasonable
deprived Guillen of no element essential to a lawful sentence.
Guillen points to three decisions holding it impermissible for
a district court to presume a sentence within the Guideline
range is reasonable. See United States v. Ross, 501 F.3d 851,
853 (7th Cir. 2007); United States v. Conlan, 500 F.3d 1167,
1169-70 (10th Cir. 2007); United States v. Wilms, 495 F.3d
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277, 281-82 (6th Cir. 2007). Notably, however, none of these
cases involved a defendant who had waived his right to
appeal his sentence.
From our review of the transcript of Guillen’s sentencing
hearing, it is apparent the district court identified the correct
Guideline range, considered the factors in § 3553(a), and
chose a sentence within the Guideline range. Pursuant to the
terms of the waiver agreement and the concomitantly limited
scope of our review, we do not consider whether the district
court erred by applying a presumption of reasonableness to a
sentence within that range. Moreover, because we hold
Guillen’s waiver was knowing, intelligent, and voluntary, we
do not consider her arguments that the sentence was
substantively unreasonable because the district court failed to
give sufficient weight to her poor health, her personal history,
and her cooperation with authorities.
III. Conclusion
Guillen waived her right to appeal any sentence below
the statutory maximum and within the Guideline range. She
appealed anyway but advances no argument that would cause
us to disregard her waiver: She makes no claim she received
ineffective assistance of counsel and she has not shown that
the district court worked a miscarriage of justice by failing to
follow an essential procedure or relied upon a constitutionally
impermissible factor in determining her sentence. We
therefore enforce the waiver agreement and hold she waived
her right to appeal her sentence. Her appeal is, accordingly,
Dismissed.