NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0116n.06
Nos. 17-5938/17-5939
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Mar 13, 2019
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TREMAINE WILBOURN, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
BEFORE: NORRIS, DAUGHTREY, and LARSEN, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Tremaine Wilbourn pleaded
guilty to numerous offenses pursuant to a plea agreement in which he also waived his right to
appeal his convictions and sentence. Wilbourn now argues, however, that his plea was not
knowing and voluntary and, therefore, should be set aside. He also contends that he received
ineffective assistance of counsel in deciding whether to enter into that plea agreement. The United
States, through the office of the United States Attorney, moves for dismissal of the appeal in
accordance with the appellate-waiver provision to which Wilbourn agreed. For the reasons set
forth below, we grant the government’s motion and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Wilbourn pleaded guilty to armed bank robbery and to carrying a firearm during
and in relation to a crime of violence. The district court sentenced Wilbourn to 121 months in
prison and three years on supervised release. After his release from incarceration, Wilbourn began
Nos. 17-5938/17-5939, United States v. Wilbourn
serving his supervised-release term on July 1, 2014. Only 13 months later, however, Wilbourn
was arrested again and eventually was indicted for carjacking; using, carrying, and brandishing a
firearm during and in relation to a crime of violence; and being a felon in possession of ammunition
(District Court Case No. 2:15-cr-20293). At the request of Wilbourn’s probation officer, the
district court also issued a warrant for Wilbourn to appear for a revocation of his supervised release
because of the defendant’s commission of federal crimes and his unauthorized use of marijuana
(District Court Case No. 2:05-cr-20240).
Facing maximum sentences of life in prison plus 25 years for the indicted offenses, and
additional prison time for the violation of supervised release, Wilbourn entered into a favorable
plea agreement with the government. In their entirety, the substantive terms of that agreement
provided:
The United States and the defendant, represented by counsel and pursuant
to Rule 11(c)(1)(C), Federal Rules of Criminal Procedure, hereby enter into the
following plea agreement:
1. The defendant will plead guilty to the three-count indictment charging
him with carjacking in violation of 18 U.S.C. § 2119 (Count 1), using a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c) (Count 2), and being
a felon in possession of ammunition in violation of 18 U.S.C. § 922(g) (Count 3).
2. Pursuant to Rule 11(c)(1)(C), F. R. Crim. P., the parties agree that the
defendant shall be sentenced to a total term of imprisonment of twenty-five years
and two days.
3. The defendant will also plead guilty to the supervised release violation
pending against him in Criminal Case No. 05-CR-20240. Pursuant to Rule
11(c)(1)(C), F. R. Crim. P., the parties agree that the defendant shall not be
sentenced to more than 30 months on this violation, which is the high end of the
sentencing guideline range for this violation. The parties further agree that the
determination of whether the sentence imposed for this violation is concurrent or
consecutive to the sentence in this case is left to the discretion of the Court.
4. The defendant agrees that he waives any right to appeal his conviction
or sentence on both this case and on his supervised release violation.
5. The parties agree that this agreement is the entire agreement between the
parties.
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Despite the plea agreement’s language indicating that the district court had the discretion
to run Wilbourn’s sentence for the supervised-release violation concurrently or consecutively with
his sentences for the indicted crimes, 18 U.S.C. § 924(c)(1)(D)(ii) unambiguously states that “no
term of imprisonment imposed on a person under this subsection shall run concurrently with any
other term of imprisonment imposed on the person.” (Emphasis added.) Thus, the district court
was required to run the 30-month sentence for the violation of supervised release consecutively
with the 25-year-and-two-day sentence already imposed in District Court Case No. 2:15-cr-20293,
regardless of any language to the contrary in the plea agreement itself.
Unfortunately, the district court did not clear up the parties’ misconceptions. During the
change-of-plea hearing, when referencing the possible sentence for the supervised-release
violation, the district court explained to Wilbourn, “And in this agreement, you and the government
are leaving it to me to decide whether that is part of the 25 years and two days or whether it goes
on top of the 25 years and two days.” Furthermore, at the sentencing hearing, the district court
again noted that the prosecution and the defense “have not agreed as to whether [the 30-month
sentence for violating the terms of supervised release is to be] consecutive or concurrent,” and
invited counsel to argue for their respective positions on the issue.
After hearing from the prosecution and from defense counsel, the district court discussed
the relevant sentencing factors set forth in 18 U.S.C. § 3553(a). The district court then ordered
that the sentence for the violations of the terms of supervised release run consecutively with the
25-year-two-day sentence because of Wilbourn’s “need for additional time to understand and deal
with the issues that come from the failure to follow authority because that goes directly to the
supervised release violation, to the issues related to not following the things that you are told to
do.”
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Nos. 17-5938/17-5939, United States v. Wilbourn
Wilbourn now seeks to appeal from that determination. In doing so, he argues that his plea
agreement should be set aside because he did not enter it knowingly and voluntarily. He claims
that he understandably was under the impression that the district court might order the 30-month
sentence to be served concurrently with the longer prison sentence when, in reality, the district
court was forbidden by statute to do so. Wilbourn also challenges the legitimacy of his guilty plea
on the basis that his attorney provided ineffective assistance of counsel by not recognizing and
explaining the limits on the district court’s sentencing discretion.
DISCUSSION
A criminal defendant may waive any constitutional right—even his right to appeal his
sentence—in a valid plea agreement. See United States v. Fleming, 239 F.3d 761, 763–64 (6th
Cir. 2001); United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). For such a plea agreement
to be valid for constitutional purposes, however, the defendant must have entered into it knowingly
and voluntarily. Smith, 344 F.3d at 483. Moreover, “[a] guilty plea can be involuntary as a result
of the ineffective assistance of counsel.” United States v. Gardner, 417 F.3d 541, 545 (6th Cir.
2005) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Here, in the face of the government’s
request that we dismiss Wilbourn’s appeal that he ostensibly waived in his plea agreement,
Wilbourn insists that the plea could not have been entered knowingly and voluntarily because he
had been misinformed by the district court and by his counsel about the possibility that the district
court would order his 30-month sentence to be served concurrently with the longer sentence he
received for the offenses charged in District Court Case No. 2:15-cr-20293.
Ordinarily, “[w]e apply de novo review to the issue of whether a criminal defendant has
waived appellate rights in a valid plea agreement.” United States v. Detloff, 794 F.3d 588, 592
(6th Cir. 2015). Where, as here, however, the defendant failed to raise his objections before the
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district court, we review for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). To satisfy
the plain-error standard, Wilbourn must establish “(1) error (2) that was obvious or clear, (3) that
affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)
(en banc) (citation and internal quotation marks omitted).
Knowing and Voluntary Nature of Guilty Plea
“For an appellate waiver to be knowing and voluntary, the defendant . . . must have entered
into the plea agreement as a whole knowingly and voluntarily.” United States v. Ataya, 869 F.3d
401, 402 (6th Cir. 2017) (Ataya I). Wilbourn insists that his plea to the supervised-release violation
was not made with full knowledge because the plea agreement, the prosecution, and the district
court all specified that the district court could determine whether that sentence would be served
concurrently or consecutively with the lengthier sentence imposed upon him for the indicted
offenses. The parties agree that such an intimation was wrong in light of the unambiguous mandate
of 18 U.S.C. § 924(c)(1)(D)(ii). That error, however, did not render Wilbourn’s plea unknowing
or involuntary, nor did it affect his substantial rights or the fairness, integrity, or public reputation
of the proceedings.
To the extent Wilbourn argues that he did not receive the benefit of his bargain—that he
did not receive a chance at concurrent sentencing—we see no error affecting his substantial rights
because the district court still undertook an evaluation of the propriety of concurrent sentencing
regardless of the mandates of § 924(c)(1)(D)(ii). As we recognized in United States v. Ataya, 884
F.3d 318, 323 (6th Cir. 2018) (Ataya II), “The third prong—that the error affected the defendant’s
substantial rights—‘in most cases . . . means that the error must have been prejudicial: It must
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Nos. 17-5938/17-5939, United States v. Wilbourn
have affected the outcome of the district court proceedings.’” (Quoting Puckett v. United States,
556 U.S. 129, 135 (2009), and United States v. Olano, 507 U.S. 725, 734 (1993)).
Here, the district court’s error in misapprehending the mandatory nature of the consecutive-
sentencing provision of § 924(c)(1)(D)(ii) was ameliorated and rendered harmless by the district
court’s consideration of the propriety of consecutive versus concurrent sentencing. Indeed,
Wilbourn actually received the benefit mistakenly bestowed by the plea agreement. Nevertheless,
the defendant’s history, the nature and seriousness of the offense, the need to promote respect for
the law, the need to protect the public, and “a significant need for deterrence” led the district court
to conclude that concurrent sentencing for the violations of the terms of supervised release would
not be appropriate. The agreement should not have indicated that the district court had discretion
in determining whether concurrent or consecutive sentences were appropriate, but Wilbourn
received the benefit of that provision and thus cannot show harm. See Puckett, 556 U.S. at 141
(recognizing that a defendant cannot show prejudice when “he obtained the benefits contemplated
by the deal”).
To the extent Wilbourn argues that the concurrent sentencing provision in the plea
agreement rendered his plea unknowing or involuntary and that the plea agreement should,
therefore, be set aside, he has not established entitlement to relief. Wilbourn’s claim that he
“possibl[y], if not likely” would have rejected the plea deal had he known that his sentence for
violation of the terms of supervised release had to run consecutively with his other sentence is both
self-serving and unbelievable. In exchange for his guilty plea, Wilbourn received an extremely
lenient, reduced sentence. In fact, as expressed by the prosecution at the defendant’s sentencing
hearing, “If he was not pleading guilty, we would be seeking the maximum punishment,”—
incarceration for life plus 25 years for the offenses in the indictment alone. Given the strength of
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the evidence arrayed against Wilbourn, it is difficult to believe that the defendant willingly would
have risked life in prison rather than agreeing to a sentence that amounted to 27 years, six months,
and two days of incarceration. In any event, to show that he was entitled to have his plea set aside
because it was unknowing or involuntary, Wilbourn would have to “show a reasonable probability
that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 76 (2004) (emphasis added). Wilbourn does not even attempt to make that showing
in his briefing before this court.
Ineffective Assistance of Counsel Claim
Wilbourn also argues that his counsel was constitutionally ineffective in failing to advise
him that the terms of the plea agreement did not comport with the mandatory language of the
sentencing provisions of 18 U.S.C. § 924(c)(1)(D)(ii). Ordinarily, such claims are resolved in
proceedings pursuant to 28 U.S.C. § 2255 after a record can be compiled memorializing the
testimony of the defendant, his attorney, and any other relevant party regarding the claim. See,
e.g., Gardner, 417 F.3d at 545. Wilbourn insists, however, that the record in this case is sufficient
to establish that he was denied the effective assistance of counsel and that we should resolve this
issue on his direct appeal. Despite Wilbourn’s invitation to address this issue prematurely, we
believe the better course is to allow Wilbourn to argue this issue in the context of a § 2255 motion.
CONCLUSION
For the reasons discussed above, Wilbourn has not established that his plea should be set
aside. Because the plea remains in force, Wilbourn is bound by the appellate-waiver provision
included in the agreement. We thus DISMISS Wilbourn’s attempted appeal.
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United States v. Tremaine Wilbourn
Combined Opinion