United States Court of Appeals
Fifth Circuit
F I L E D
February 2, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 04-41323
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL JEROME STORY,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
Before GARWOOD, PRADO, AND OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Paul Jerome Story appeals his sentence contending that the
district court improperly calculated his base level offense using
facts not found by a jury or admitted by plea, in violation of
United States v. Booker, 125 S. Ct. 738 (2005). The government
responds that the district judge provided an alternative sentence
in the event that Booker declared the Federal Sentencing
Guidelines (“Guidelines”) advisory rather than mandatory. We
find the district judge’s pronouncement of alternative sentences
ambiguous and therefore VACATE and REMAND for resentencing.
No. 04-41323
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I
On September 26, 2003, officers executing a search warrant
at Story’s home found eleven firearms, a small quantity of
methamphetamine, precursor chemicals, drug paraphernalia, and
other items typically used in a methamphetamine lab. Story
pleaded guilty to a one-count indictment charging him with
possession of a firearm as an unlawful user of a controlled
substance in violation of 18 U.S.C. § 922(g)(3). Story
stipulated that he used methamphetamine and that he had knowingly
possessed a Mossberg, Model 500E, .410 gauge caliber shotgun.
Under United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) § 2K2.1, section 922(g) has a base offense level of
12. However, the probation officer concluded that Story’s base
offense level was 18, pursuant to U.S.S.G. § 2K2.1(a)(5), because
the firearms found by the officers included a “Norinco,” a
semiautomatic assault weapon specifically listed in 18 U.S.C. §
921(a)(30).1 In addition, the probation officer increased the
base offense level by four pursuant to U.S.S.G. § 2K2.1(b)(1)(B)
because officers found eleven firearms at Story’s home.2
Finally, the probation officer increased the base offense level
by an additional four pursuant to U.S.S.G. § 2K2.1(b)(5) because
1
This subsection was repealed on September 13, 2004.
2
Section 2K2.1(b)(1)(B) allows for an increase of four
where the firearms number between eight and twenty-four.
No. 04-41323
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Story possessed a firearm in connection with the felony offenses
of possessing methamphetamine and possessing ingredients used to
manufacture methamphetamine. The probation officer reported that
Story did not qualify for a downward adjustment for acceptance of
responsibility because he had twice tested positive for
methamphetamine while on pretrial supervision. Thus, the
probation officer concluded the total offense level was 26.
Having a criminal history category of I, Story’s punishment under
the Guidelines could range from 63 to 87 months. The district
judge gave Story a 63-month sentence.
Story’s 63-month sentence was based in part on facts that he
did not admit in his plea or stipulate in the factual basis.
Story objected that the enhancements for the number of weapons
and for his possession of a weapon in connection with another
felony were barred by Blakely v. Washington and that he should be
granted a three-level downward adjustment for acceptance of
responsibility.3 He did not make a Blakely objection to the
probation officer’s assignment of base offense level 18 based on
Story’s possession of the Norinco semiautomatic weapon prohibited
under § 921(a)(30). The district court overruled Story’s
objections and adopted the factual findings in the probation
officer’s presentence report. Since Story’s sentencing
3
At the time of Story’s trial, Booker had not yet been
decided, but a Blakely objection preserves the error. United
States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005).
No. 04-41323
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proceeding occurred prior to the Booker opinion, the district
judge likely assumed the Guidelines were mandatory, pursuant to
18 U.S.C. § 3553(b)(1).4 The district judge sentenced Story to a
63-month term of imprisonment and a three-year term of supervised
release.
In anticipation of Booker, the district judge orally imposed
two alternative sentences. First, the court imposed “an
alternative sentence in the event the Guidelines are declared to
be unconstitutional and that would be the same term of
imprisonment as the Court has imposed under the Guidelines.”
Second, the court imposed an alternative sentence
in the event the Guidelines are—[if] it’s determined that
they can be applied in a Constitutional manner by adhering
to the rules set out in Blakely. In other words, if the
jury either finds beyond a reasonable doubt that the
enhancement factors are there or they’re admitted to by the
Defendant. And that sentence, that Blakely sentence I’ll
call it, would be a term of imprisonment of 21 months.
The written judgment does not include the alternative sentences
imposed by the district court.
Story filed a timely appeal. However, Story’s plea
agreement included the following appeal waiver provision:
Except as otherwise provided in this agreement, the
Defendant expressly waives the right to appeal his sentence
on all grounds, including an appeal of sentencing pursuant
4
This section states that a court “shall impose a sentence
of the kind, and within the range” provided by the United States
Sentencing Guidelines. This section was later held
unconstitutional by Booker because of its mandatory nature. 125
S. Ct. 738, 764 (2005).
No. 04-41323
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to 18 U.S.C. [§] 3742. The Defendant further agrees not to
contest his sentence in any post conviction proceeding,
including, but not limited to a proceeding under 28 U.S.C.
2255. The Defendant, however, reserves the right to appeal
the following: (a) any punishment imposed in excess of the
statutory maximum; (b) any upward departure from the
guideline range deemed most applicable by the sentencing
court; (c) arithmetic errors in the Guidelines calculations;
and (d) a claim of ineffective assistance of counsel that
affects the validity of the waiver itself. The Defendant
knowingly and voluntarily waives his right to appeal in
exchange for the concessions made by the Government in this
argument and with full understanding that the Court has not
determined his sentence.
The government has not sought to enforce the appeal waiver nor
has it explicitly declined to seek its enforcement. In fact,
neither party mentions the appeal waiver in their respective
briefs.
II
Fifth Circuit jurisprudence has not been consistent in its
treatment of whether or not appeal waivers implicate this court’s
jurisdiction. We set this issue for review sua sponte to clarify
an apparent discrepancy in our case law.
In one line of cases, where the government has sought to
enforce defendants’ appeal waivers, this court has either
explicitly referred to our lack of jurisdiction to hear the case
at hand, or granted the government’s motion to dismiss the appeal
pursuant to the appeal waiver, but without any jurisdictional
No. 04-41323
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analysis in either case.5 See, e.g., United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005)(concluding that the defendant’s
appeal waiver applied to his claim on appeal and dismissing the
appeal); United States v. Martinez, 263 F.3d 436, 438 (5th Cir.
2001)(finding that the defendant’s waiver of his right to appeal
deprived the court of jurisdiction); United States v. White, 258
F.3d 374, 380 (5th Cir. 2001)(noting that waiver of appeal
provisions in plea agreements “are routinely held to deprive
appellate courts of jurisdiction to hear appeals of sentencing
issues”).
In another line of cases, we have not treated appeal waivers
as implicating jurisdiction where the government failed to
request enforcement of the appeal waiver or explicitly declined
to seek enforcement of the appeal waiver. In these cases, we did
not raise the issue sua sponte or enforce the waiver where the
parties did not mention the waiver in their briefs. Recently, we
5
Those cases that granted the government’s motion to
dismiss based on the defendant’s applicable appeal waiver without
jurisdictional analysis were certainly not incorrect. As we
explain below, a defendant’s waiver of appeal may entitle the
government to dismissal on contractual grounds. These cases,
however, sometimes followed earlier ones that explicitly raised
the issue of jurisdiction. “‘Clarity would be facilitated if
courts and litigants used the label “jurisdictional” . . . only
for prescriptions delineating the classes of cases (subject
matter jurisdiction) and the persons (personal jurisdiction)
falling within a court’s adjudicatory authority.’” Scarborough v.
Principi, 541 U.S. 401, 413-14 (2004)(quoting Kontrick v. Ryan,
540 U.S. 443, 454-55 (2004)). The two justifications for
dismissal, working in tandem without explanation, have muddled
our jurisprudence.
No. 04-41323
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declared that appeal waivers are not jurisdictional, but did not
cite to any authority. United States v. Kennedy, 137 F. App’x.
685, 686 (5th Cir. 2005). In Kennedy, we did not dismiss the
defendant’s appeal based on the assumption that the government
did not wish that the appeal waiver be enforced because it made
no mention of the appeal waiver in its brief. Id. at 686-87. In
United States v. Rhodes, “in the absence of published authority
dictating otherwise,” this court chose not to enforce an appeal
waiver where the government explicitly chose not to rely on it.
253 F.3d 800, 804 (5th Cir. 2001). Several cases thereafter
followed Rhodes. See, e.g., United States v. Alanis-Zuniga, 135
F. App’x 759, 759 (5th Cir. 2005); United States v. Saldua, 120
F. App’x 553, 554 (5th Cir. 2005); United States v. Trevino, 125
F. App’x 549, 549 n.2 (5th Cir. 2005); United States v. Castro-
Aguilar, 150 F. App’x 335, 336 (5th Cir. 2005). These cases do
not provide analysis supporting the conclusion that appeal
waivers do not implicate a court’s jurisdiction.
This court’s attention to jurisdiction with regard to appeal
waivers is misplaced, see, e.g., Martinez, 263 F.3d at 438,
United States v. White, 258 F.3d at 380, because such waivers do
not deprive us of jurisdiction.6 We have jurisdiction to hear
6
Other courts have also found that appeal waivers do not
deprive them of jurisdiction. See United States v. Mason, 343
F.3d 893 (7th Cir. 2003)(“[W]aiver of appeal rights does not
deprive us of our appellate jurisdiction . . . .”); United States
v. Hines, 196 F.3d 270, 273 (1st Cir. 1999)(“Nor is this a case
No. 04-41323
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Story’s appeal pursuant to both 28 U.S.C. § 1291 and 18 U.S.C. §
3742. See United States v. Hahn, 359 F.3d 1315, 1320 (10th Cir.
2004). The district court’s entry of Story’s sentence is a final
decision and § 1291 confers subject matter jurisdiction upon this
court. See Corey v. United States, 375 U.S. 169 (1963)(“‘Final
judgment in a criminal case . . . means sentence. The sentence
is the judgment.’”)(quoting Berman v. United States, 302 U.S.
211, 212 (1937)). Further, our jurisdiction to hear Story’s
appeal of his sentence is conferred by § 3742, which states, “[a]
defendant may file notice of appeal . . . if the sentence . . .
was imposed in violation of the law [or] was imposed as a result
of an incorrect application of the sentencing guidelines . . . .”
Both of these alternatives in § 3742 apply to the instant case
because Story contends his sentence violated Booker.
Notwithstanding this court’s jurisdiction to hear appeals of
defendants’ sentences pursuant to § 3742, the defendant’s
statutory right to appeal, also conferred by § 3742, may be
waived by defendants. Waiver of statutory rights by voluntary
agreement of parties is not prohibited absent an affirmative
indication of Congress’s intent to preclude waiver. United
States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002)(citing United
States v. Mezzanatto, 513 U.S. 196, 201 (1995)). Further, plea
agreements, as long as they are made voluntarily and
in which a valid waiver deprives us of ‘jurisdiction’ . . . .”).
No. 04-41323
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intelligently, are not constitutionally prohibited. Mabry v.
Johnson, 467 U.S. 504, 508-09 (1984). Thus, a defendant may
waive his or her right to appeal under § 3742 in a written plea
agreement, as long as the waiver is done voluntarily and
intelligently. United States v. Baymon, 312 F.3d 725, 727 (5th
Cir. 2002).
We analyze waivers of appeal in plea agreements using
contract law. United States v. Cantu, 185 F.3d 298, 304 (5th
Cir. 1999). Other circuits agree that plea agreements are
construed under the principles of contract law. United States v.
Cimino, 381 F.3d 124, 127 (2d Cir. 2004); United States v. Kelly,
337 F.3d 897 (7th Cir. 2003); United States v. Franco-Lopez, 312
F.3d 984, 989 (9th Cir. 2002); United States v. McQueen, 108 F.3d
64, 66 (4th Cir. 1997).
A party may waive a contract provision that is beneficial to
it. See 13 WILLISTON ON CONTRACTS § 39:36 (4th ed.)(“The general
view is that a party to a written contract can waive a provision
of that contract by conduct expressly or surrounding performance
. . . .”). When Story pleaded guilty to § 922(g)(3), he agreed
to include a provision in his plea agreement in which he waived
his right to appeal his sentence. Without a doubt, Story’s
waiver of appeal is beneficial to the government. Story’s waiver
of appeal is enforceable to the extent that the government
invokes the waiver provision in his plea agreement. In the
No. 04-41323
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absence of the government’s objection to Story’s appeal based on
his appeal waiver, the waiver is not binding because the
government has waived the issue. We move to the merits of
Story’s appeal.
III
Story raised and preserved his Booker challenges to the
district court’s sentence both at the trial court level and on
appeal. Specifically, Story objected to the findings that he
possessed a certain number of firearms and that he used a firearm
in connection with another felony offense. Story argues that the
district judge enhanced his sentence based on judicial
factfinding, not on facts stipulated by the Defendant or on a
jury determination of fact. Thus, he contends, based on the
indictment, the facts established during the guilty plea, and an
adjustment for acceptance of responsibility, the advisory
guideline range is no more than 18 to 24 months. Story maintains
that the 63-month sentence imposed by the district court violates
Booker and that the case must be remanded for imposition of the
21-month alternative sentence or for resentencing.
The government does not dispute that the district court’s
determination of Story’s current sentence violated Booker, but it
argues that a remand for resentencing is unnecessary because the
record shows that the district court would have imposed the same
No. 04-41323
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63-month sentence had it exercised its discretion under advisory
Guidelines. The government urges that Story’s current sentence
should be affirmed because it is “reasonable” under Booker.7 The
government does not contest that Story’s sentence enhancements
were pursuant to judicial factfinding, but it argues that the
district judge in its pronouncement of alternative sentences
provided for the event that the Guidelines were declared advisory
rather than mandatory. Thus, the government argues that Story’s
case should not be remanded for resentencing because his 63-month
sentence fits within the first alternative sentence pronounced by
the district court.
We review an appellant’s claim that the district court
incorrectly applied constitutional standards de novo. U.S. v.
Shaw, 920 F.2d 1225 (5th Cir. 1991).
The district court’s alternative sentences were not included
in the written judgment but were made orally. “[W]hen there is a
conflict between a written sentence and an oral pronouncement,
the oral pronouncement controls.” United States v. Martinez, 250
F.3d 941, 942 (5th Cir. 2001). “If, however, there is merely an
ambiguity between the two sentences, the entire record must be
7
Booker noted that the Guidelines “continue[] to provide
for appeals from sentencing decisions . . . irrespective of
whether the trial judge sentences within or outside the
Guidelines range in the exercise of his discretionary power”
since 10 U.S.C. § 3553(a) guides appellate courts in determining
if a sentence is unreasonable. Booker, 125 S.Ct. at 765.
No. 04-41323
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examined to determine the district court’s true intent.” Id. In
this case, there is a conflict between the oral pronouncement and
the written judgment because the written judgment does not
mention the alternative sentencing scheme; therefore, the oral
pronouncement controls. But there is an ambiguity in the oral
pronouncement itself, and we cannot ascertain the district
court’s true intent from an examination of the record.
The district court sentenced Story to a 63-month term of
imprisonment based on a mandatory application of the Guidelines.
But in its oral pronouncement, the court provided two sentencing
alternatives in anticipation of Booker. The first alternative
sentence of 63 months was to take effect if “the Guidelines are
declared unconstitutional.” The second alternative sentence of
21 months was to take effect if “it’s determined that [the
Guidelines] can be applied in a Constitutional manner by adhering
to the rules set out in Blakely.” The record shows that the
district court anticipated that Blakely might invalidate the
Guidelines and was trying to exercise its discretion in
sentencing Story. In the first alternative sentence, the
district judge anticipated that Booker would completely
invalidate the Guidelines; in the second alternative sentence, he
anticipated that Booker would hold the Blakely principle
applicable to the Guidelines, but did not necessarily anticipate
that it would render the Guidelines advisory.
No. 04-41323
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In a recent case in which a district judge imposed similarly
worded alternative sentences, we found that the trigger for the
first alternative sentence, the Guidelines being declared
unconstitutional in their entirety, did not occur. United States
v. Adair, No. 04-30859, 2006 WL 73755 at *6 (5th Cir. Jan. 13,
2006)(citing United States v. Walters, 418 F.3d 461 (5th Cir.
2005)). Likewise, this trigger did not occur to activate Story’s
first alternative sentence. With regard to the second
alternative sentence, we noted in Adair that “there is no way for
us to discern precisely what the district court meant when it
conditioned [defendant’s] alternate sentence on the Supreme
Court’s application of Blakely to the sentencing guidelines.”
Id. at *7. Similar to Adair, there is nothing in the record
before us to suggest that the district judge anticipated the
remedial holding in Booker, such that he considered the
Guidelines as one factor among others in determining Adair’s
sentence.
Criminal sentences must “reveal with fair certainty the
intent of the court to exclude any serious misapprehensions by
those who must execute them.” United States v. Daugherty, 269
U.S. 360, 363 (1926). Daugherty dictates that “the interest of
judicial economy and fairness to all concerned parties” require
that unclear or ambiguous sentences be vacated and remanded for
clarification. United States v. Patrick Petroleum Corp., 703
No. 04-41323
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F.2d 94 (5th Cir. 1982); see also United States v. Walters, 418
F.3d 461 (5th Cir. 2005)(remanding for resentencing where the
court found ambiguity in the lower court’s alternative
sentences); United States v. Garcia-Ortiz, 310 F.3d 792, 795 (5th
Cir. 2002)(“In light of the ambiguity in the record, the best
course is to remand the case for reconsideration of the
sentence.”).
It is unclear whether the district judge anticipated that
the Supreme Court would take the remedial measure of rendering
the Guidelines advisory rather than completely invalidating them.
Thus, we find that Story’s sentence is ambiguous, and thus we
cannot remand for imposition of the second alternative sentence.
We VACATE and REMAND for sentencing proceedings consistent with
this opinion.