In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3521
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DARRYL ANTHONY WORTHEN,
Defendant‐Appellant.
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Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 15‐cr‐00006 — Sarah Evans Barker, Judge.
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ARGUED OCTOBER 28, 2016 — DECIDED NOVEMBER 28, 2016
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Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. As a FedEx driver, Darryl Worthen
delivered packages to Scott Maxie—the owner of a gun store
in southern Indiana called Muscatatuck Outdoors. Worthen
and Maxie knew each other well, as they often conversed dur‐
ing the deliveries. Worthen even considered Maxie to be a
friend. But unfortunately, their friendship wasn’t strong
enough to withstand Worthen’s greed. Worthen decided to
rob Maxie—and he exploited their friendship to do it.
2 No. 15‐3521
On September 20, 2014, Worthen called Maxie to set up a
meeting under the guise of making a gun trade. But the true
purpose of this meeting was to give Worthen and his confed‐
erates—his brother DeJuan and cousin Darion Harris—an op‐
portunity to case Maxie’s store. That afternoon, the three
drove 76 miles from Indianapolis to the store, devising a plan
to rob Maxie along the way. They met with Maxie for almost
an hour, surveyed the store, and then left.
They returned the next day. This time, they brought along
backpacks to carry the firearms that they planned to steal.
During their drive, they decided not only to rob Maxie but
also to kill him. To that end, Worthen brought a .22 caliber
handgun. When they arrived at the store, Worthen conversed
with Maxie. During their conversation, Worthen pulled out
his handgun, pointed it at Maxie’s face, and shot him in the
eye, killing him.
The men then grabbed 45 firearms and loaded them into
their backpacks. Worthen also stole Maxie’s laptop, which was
recording the video feed from the store’s surveillance cam‐
eras. They then left the store, heading back to Indianapolis. En
route, Worthen threw the murder weapon and laptop into a
cornfield.
On September 22, 2014, police officers arrested Worthen,
DeJuan, and Harris. The officers found only four of the stolen
firearms in Worthen’s possession. Worthen and his confeder‐
ates had already distributed most of the firearms throughout
Indianapolis. Indianapolis police officers found one of the
firearms in October 2014 when executing a search warrant for
drugs. And they discovered another firearm in February 2015
when investigating a shooting. In total, 36 of the 45 stolen fire‐
arms remain unrecovered.
No. 15‐3521 3
On March 11, 2015, a grand jury indicted Worthen on four
counts: (1) Hobbs Act robbery under 18 U.S.C. §§ 1951(a) and
2; (2) conspiracy to commit Hobbs Act robbery under 18
U.S.C. § 1951(a); (3) causing death while using or carrying a
firearm during a crime of violence under 18 U.S.C. §§ 924(j)
and 2; and (4) stealing firearms from a federal firearms licen‐
see under 18 U.S.C. § 922(u). Hobbs Act robbery carries a
prison term of up to 20 years, 18 U.S.C. § 1951(a); and a con‐
viction on a crime‐of‐violence charge authorizes a sentence of
death or life imprisonment, 18 U.S.C. § 924(j)(1). Worthen en‐
tered into a plea agreement with the government under which
he agreed to plead guilty to these two charges and further
agreed to waive his appeal rights. In exchange, the govern‐
ment agreed to drop the other charges and promised to not
seek the death penalty.
The district court held the sentencing hearing on Novem‐
ber 2, 2015. There, Worthen apologized to Maxie’s family, and
his attorney offered several mitigating factors, including
Worthen’s acceptance of responsibility, his difficult life cir‐
cumstances, and his low risk for future violence. The govern‐
ment’s response centered on the heinous nature of the crime,
the suffering that Maxie’s family had endured, and the havoc
that the stolen firearms were wreaking on the Indianapolis
streets. After considering the arguments, the court sentenced
Worthen to 10 years for the Hobbs Act robbery and 50 years
for the crime of violence for a total of 60 years’ imprisonment.
Irrespective of the appeal waiver, Worthen now appeals
his conviction, arguing that Hobbs Act robbery—the predi‐
cate offense for Worthen’s § 924(j) conviction—is not a “crime
of violence” as the statute defines that term. Thus, Worthen
contends that his § 924(j) conviction is invalid.
4 No. 15‐3521
Before we can address this argument, Worthen must con‐
vince us that he has not waived his right to an appeal. Gener‐
ally speaking, appeal waivers are enforceable and preclude
appellate review. United States v. Sines, 303 F.3d 793, 798 (7th
Cir. 2002). Even so, we have recognized a few narrow excep‐
tions to this rule—one of which is that a defendant may al‐
ways contest a sentence that exceeds the statutory maximum
for the crime committed. United States v. Smith, 759 F.3d 702,
706 (7th Cir. 2014). This makes perfect sense. When a defend‐
ant pleads guilty to a crime and waives his right to an appeal,
he acquiesces to the court’s discretion to impose a sentence
that he knows will fall within a specified statutory range. In‐
deed, that’s what makes the waiver knowing and intelligent,
and thus enforceable. But if the court disregards that permis‐
sible sentencing range and imposes a sentence exceeding that
which the defendant knew was the harshest penalty he could
receive, then there is no knowing and intelligent waiver at all.
United States v. Gibson shows as much. 356 F.3d 761 (7th
Cir. 2004). There, the defendant pled guilty to violating 18
U.S.C. § 371—conspiracy to commit mail and wire fraud. The
district court sentenced him to 262 months, even though the
crime carried a maximum penalty of only 60 months. Alt‐
hough he waived his appeal rights, we allowed him to appeal
his sentence, noting that we could not enforce a sentence that
the law does not authorize. Id. at 763–66.
Worthen contends that Gibson’s rationale applies here, too.
Specifically, he notes that he received 60 years’ imprisonment
for committing both a robbery and a crime of violence, but the
crime‐of‐violence conviction is invalid. That leaves only the
robbery conviction, which carries a maximum sentence of 20
years’ imprisonment. 18 U.S.C. § 1951(a). Accordingly,
No. 15‐3521 5
Worthen argues that, because his 60‐year sentence exceeds the
statutory maximum for the only viable conviction, we should
allow his appeal.
This argument misconstrues our holding in Gibson—a case
that is easily distinguishable from this one. True enough, in
Gibson, we considered the defendant’s appeal—irrespective of
his appeal waiver—after concluding that his sentence ex‐
ceeded the statutory maximum. But reaching that conclusion
required nothing more than comparing the sentence that the
statute allowed to the sentence actually imposed. It did not
require us to determine that the underlying conviction was
invalid beforehand, as Worthen would have us do here.
And that distinction matters. To be clear, the crux of
Worthen’s argument is that the validity of his appeal waiver
depends on the validity of his conviction. That argument is
entirely circular. Indeed, to determine whether Worthen’s
crime‐of‐violence conviction is invalid, we would have to take
the appeal in the first place. Then, only if we agree with
Worthen and conclude that his conviction is in fact invalid
would we find that Worthen’s sentence exceeds the statutory
maximum, which in turn would mean that Worthen did not
waive his appeal rights. So the rule would be that an appeal
waiver is enforceable unless the appellant would succeed on
the merits of his appeal. That cannot be the law.
For if that were the law, then appeal waivers would lose
all effect. That’s because we would have to consider an ap‐
peal’s merits in every case. In doing so, if we were to conclude
that the defendant’s conviction was not valid, then any sen‐
tence imposed necessarily would exceed the statutory maxi‐
mum because there can be no punishment without liability;
in that scenario, we would hold that the defendant did not
6 No. 15‐3521
waive his right to an appeal. And if we were to conclude that
the defendant’s conviction was valid, then we would dismiss
the appeal as waived so long as the sentence falls within the
permissible statutory range; in that case, the appeal waiver
would be irrelevant because we would have decided the ap‐
peal on the merits anyway. Consequently, this rule would
eviscerate the right to waive an appeal.
Apart from contravening our longstanding precedent that
appeal waivers are generally enforceable, such a rule would
have perverse consequences. Many criminal defendants
might benefit from waiving their appeal rights. In fact,
Worthen so benefitted: in exchange for foregoing his appeal
rights, the government agreed to drop some of the charges
and further agreed to not seek the death penalty. Worthen per‐
haps saved his life by waiving his appeal rights. If Worthen
could then renege on his deal and maintain an appeal, then
why would the government make these kinds of deals in the
future? Why wouldn’t the government instead just charge de‐
fendants like Worthen with all applicable crimes and see what
sticks after the appeal? Worthen’s proposed rule is as undesir‐
able as it is nonsensical.
Here, Worthen “expressly waive[d] his right to appeal
[his] conviction and sentence … on any and all grounds.” (R.
45 at 4.) His waiver precludes an appeal. We accordingly
DISMISS Worthen’s appeal without considering the merits.