United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 25, 2021 Decided March 1, 2022
No. 20-3025
UNITED STATES OF AMERICA,
APPELLEE
v.
ARNOLD JACKSON,
APPELLANT
Consolidated with 20-3046, 21-3035
Appeals from the United States District Court
for the District of Columbia
(No. 1:19-cr-00347-1)
Carmen D. Hernandez, appointed by the court, argued the
cause and filed the briefs and appellant’s Memoranda of Law
and Fact.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief and appellee’s
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Memorandum of Law and Fact were Elizabeth Trosman,
Assistant U.S. Attorney at the time the brief was filed, and
Elizabeth H. Danello and Peter S. Smith, Assistant U.S.
Attorneys.
Before: RAO and WALKER, Circuit Judges, and SENTELLE,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Arnold Jackson pled
guilty to possession with the intent to distribute cocaine base in
the District of Columbia. After entering a plea agreement, he
was sentenced to 48 months of imprisonment tailored to run
consecutively to a then-anticipated, but not-yet-imposed,
prison sentence in another district court. While imprisoned,
Jackson filed two motions for compassionate release under 18
U.S.C. § 3582(c)(1)(A). The District Court for the District of
Columbia denied both motions. Jackson appeals, arguing that
the district court erred, both in ordering that his sentence run
consecutively to a possible sentence and by denying his
motions for compassionate release. Because we conclude that
Jackson waived his right to appeal his sentence in his plea
agreement and that the district court did not err in denying his
motions for compassionate release, we affirm.
I. Background
In 2003, Jackson was convicted by a jury in the Western
District of Virginia of conspiring to possess with intent to
distribute fifty grams or more of cocaine base. The judge in
that case originally sentenced him to life in prison. However,
the judge later reduced that sentence to 192 months. Jackson
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served his term of imprisonment and began serving a five-year
term of supervised release.
While still on supervised release, Jackson was arrested
in the District of Columbia in possession of 49 grams of
cocaine, 27 grams of methamphetamine, about one gram each
of heroin and oxycodone, and drug paraphernalia. Jackson was
released pending trial, anticipating that he would cooperate
with the government in other investigations. No substantial
cooperation materialized, but Jackson did provide some helpful
information to the government.
In recognition of his efforts to cooperate, the
government offered Jackson a plea agreement pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C). This
agreement, once accepted by the sentencing judge, provided for
a 48-month sentence if Jackson pled guilty to possession with
intent to distribute cocaine base. Jackson accepted the offer.
At Jackson’s sentencing hearing, his counsel raised the
point that Jackson was also facing a supervised release
revocation in the Western District of Virginia for the same
conduct to which he was pleading guilty in the District of
Columbia. Jackson requested that any sentence imposed run
concurrently to any sentence he may receive for violating the
terms of his supervised release in Virginia. The sentencing
judge denied that request and sentenced Jackson to 48 months
of imprisonment to run consecutively to any other sentence
imposed. Jackson appealed that sentence to this court.
After being sentenced in the District of Columbia,
Jackson was sentenced in the Western District of Virginia to 12
months of imprisonment for violating the terms of his
supervised release.
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Jackson then moved his sentencing judge in the
Western District of Virginia for compassionate release via 18
U.S.C. § 3582(c)(1)(A) in light of the COVID-19 pandemic.
That motion was granted, but the order specifically noted that
it “only addresse[d] the 12-month sentence imposed by [the
Western District of Virginia] for Jackson’s supervised release
violation.” United States v. Jackson, No. 5:02-cr-30020, 2020
WL 2735724, *1 n.1 (W.D. Va. May 26, 2020). Because the
Western District of Virginia order had no effect on the sentence
imposed in the District of Columbia, Jackson remained in
custody.
Following his successful pro se motion in Virginia,
Jackson filed a motion in the District of Columbia for
compassionate release. That motion was denied, and Jackson
appealed. United States v. Jackson, 468 F. Supp. 3d 59, 70
(D.D.C. 2020).
Jackson then filed a second, pro se motion for
compassionate release. That motion was denied for
substantially the same reasons as the first motion for
compassionate release, United States v. Jackson, No. 1:19-cr-
00347 (TNM), 2021 WL 1299439 (D.D.C. Apr. 7, 2021); more
specifically, for not having shown extraordinary and
compelling reasons justifying his release. Following the
second denial, Jackson moved the court to reconsider the
second motion for compassionate release. That motion was
also denied. Jackson appealed once again.
Jackson’s three appeals were consolidated without
objection in this court.
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II. The Consecutive Sentence
We consider first Jackson’s claim that the District of
Columbia district judge did not have the authority to make his
48-month sentence consecutive to his then-anticipated, but not-
yet-imposed, sentence for violating the terms of his supervised
release in the Western District of Virginia. That issue has not
previously been determined by this Circuit. However, before
proceeding with the merits, we must address the government’s
argument that Jackson waived his right to appeal his sentence
when he entered the plea agreement with the government.
In that plea agreement, Jackson agreed to plead guilty
to unlawful possession with intent to distribute a detectable
amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C). The agreement was entered into under Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure. If a
sentencing judge accepts a Rule 11(c)(1)(C) plea agreement,
the judge has agreed to impose the sentence agreed to in the
plea agreement. Jackson and the government agreed to a
sentence of 48 months of incarceration followed by three years
of supervised release. The agreement did not refer to any other,
not-yet-imposed sentence.
As a part of this plea agreement, Jackson waived many
of his constitutional and statutory rights, including most of his
appeal rights. In the words of the plea agreement, Jackson
“agree[d] to waive the right to appeal the sentence in this case,
including but not limited to any term of imprisonment, fine,
forfeiture, award of restitution, term or condition of supervised
release . . . .” Jackson retained the right to appeal if the
sentence was “above the statutory maximum or guidelines
range determined by the Court,” and the right to “appeal on the
basis of ineffective assistance of counsel, but not to raise on
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appeal other issues regarding the conviction or sentence.”
Supplemental Appendix (SA) 8.
Jackson contends that the plea agreement does not
foreclose his appeal for two reasons. First, Jackson argues that
the sentencing judge did not properly advise him of the terms
of the plea agreement, and therefore his entry into the
agreement was neither knowing, intelligent, nor voluntary.
Next, Jackson argues that the plea agreement is ambiguous as
to whether he may appeal the imposition of a consecutive
sentence and that ambiguous plea agreements should be
interpreted against the drafter, i.e., the government.
A.
A knowing, intelligent, and voluntary waiver of the
right to appeal may generally be enforced. United States v.
Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015). To ensure that
a defendant understands the terms of a plea agreement, Rule
11(b) of the Federal Rules of Criminal Procedure requires a
judge accepting a guilty plea to address the defendant
personally in open court and “inform the defendant of, and
determine that the defendant understands,” among other things,
“the terms of any plea-agreement provision waiving the right
to appeal or to collaterally attack the sentence[.]” Fed. R. Crim.
P. 11(b)(1)(N).
It is uncontested that in this case, the judge accepting
Jackson’s guilty plea did not fully comply with the terms of
Rule 11(b)(1)(N), as he did not go over the appeal rights that
Jackson was waiving by entering into the agreement.
However, a “Rule 11(b)(1)(N) error at the plea hearing does
not affect the defendant’s substantial rights if the defendant still
knowingly, intelligently, and voluntarily waived the right to
appeal.” United States v. Lee, 888 F.3d 503, 504–05 (D.C. Cir.
7
2018). “To determine whether the defendant knowingly,
intelligently, and voluntarily waived the right to appeal, the
court of appeals must examine the entire record, including both
the written plea agreement and the plea hearing.” Id. at 505.
In concluding that the entire record evidenced that the
defendant’s waiver was knowing, voluntary, and intelligent
despite a Rule 11(b)(1)(N) error, the Lee court relied on the
following: the “crystal clear” language of the waiver of a right
to appeal the imposition of an 18-month sentence; the
defendant’s signature on the plea agreement; that the plea
agreement stated that the defendant had read and fully
understood the agreement, discussed it with counsel, and was
entering the agreement voluntarily; that he was represented by
an experienced defense attorney; that it is standard practice for
defense counsel to discuss appeal waivers with clients prior to
plea hearings; that the defendant reaffirmed to the court that he
had carefully read the agreement and discussed it with counsel
and did not have any questions; that he stated that he was
satisfied with his counsel; and that there was no record
evidence to the contrary. Id. at 508.
While not all of the factors relied upon by the Lee court
are present in this case, most of them are. Jackson’s signature
is on the plea agreement and the plea agreement states that
Jackson “read every page of this Agreement,” discussed it with
his attorney, and that he entered the agreement voluntarily. SA
11. Jackson stated on the record to the judge accepting his
guilty plea that he was satisfied with the services of his counsel.
Further, Jackson confirmed to the judge at his plea hearing that
he had read the plea agreement carefully, that he understood it,
and had sufficient time to discuss the plea agreement with his
counsel.
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At the plea hearing, Jackson’s counsel was asked to
summarize the terms of the plea agreement and noted on the
record that the agreement “sets out the appeal rights that he’s
waiving. The only appeal he retains is if the Court imposes [a]
sentence above . . . the statutory maximum or guideline range
determined by the Court.” Jackson was asked if he had “any
confusion or questions about this agreement” that he would like
to ask his attorney or the presiding judge; he stated that he did
not. Also, like in Lee, Jackson was represented by an
experienced criminal defense attorney; Jackson’s attorney had
over 25 years of experience representing criminal defendants.
The language of Jackson’s plea agreement is
unambiguous as to which rights he waived when he entered
into it, making any error in the plea colloquy harmless. In Lee,
the defendant sought to appeal the length of his sentence
despite his clear waiver of the right to appeal a sentence within
the United States Sentencing Guidelines. Lee, 888 F.3d at 506.
In this case, it is less “crystal clear” than it was in Lee that
Jackson waived the right to appeal a consecutive sentence
because the terms consecutive and concurrent do not appear in
the waiver section of the plea agreement. However, the plea
agreement is clear that he agreed to waive “the right to appeal
the sentence in this case.” This, in combination with the
multiple assurances in writing and in open court that Jackson
understood the plea agreement and was entering it voluntarily,
renders any error in the presiding judge’s Rule 11(b)(1)(N)
colloquy harmless.
Having reviewed the record in its entirety, we conclude
that Jackson knowingly, intelligently, and voluntarily entered
into the plea agreement with the government and that the
waiver of his appeal rights is enforceable.
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B.
Jackson further argues that even if he did knowingly,
intelligently, and voluntarily enter into the plea agreement, it is
ambiguous as to whether the plea agreement waived his right
to appeal the imposition of a consecutive sentence.
We ordinarily dismiss an appeal falling within the
scope of a valid appeal waiver, see, e.g., United States v.
Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015), but “we will not
bar the door to a criminal defendant’s appeal if his waiver only
arguably or ambiguously forecloses his claims,” United States
v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016). A plea
agreement is, at bottom, a contract between the criminal
defendant and the government. Therefore, we adhere to the
principals of contract law in the interpretation of plea
agreements. Id. “Ambiguity in a plea agreement, as in any
other type of contract, is construed against the drafter.” Id.
(citing United States v. Henry, 758 F.3d 427, 431 (D.C. Cir.
2014)). An ambiguous appeal waiver cannot be knowingly,
intelligently, and voluntarily agreed to. See id. at 1027.
Jackson primarily relies on Hunt to argue that the plea
agreement is ambiguous as to whether it includes a waiver of
his right to appeal the imposition of a consecutive sentence. In
Hunt, the defendant was sentenced to 62 months of
imprisonment and five years of supervised release with the
special condition that he stay away from a particular housing
complex in Southeast D.C. He appealed, challenging the
special condition of supervised release imposed by the district
court. Hunt, 843 F.3d at 1024.
The defendant in Hunt had also entered a plea
agreement that waived some of his appellate rights with respect
to his sentence. He agreed to waive “the right to appeal the
sentence in this case, including any term of imprisonment, fine,
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forfeiture, award of restitution, term of supervised release,
authority of the Court to set conditions of release, and the
manner in which the sentence was determined,” except to the
extent that the court sentenced him above the statutory
maximum or guidelines range determined by the court. Hunt,
843 F.3d at 1025.
The Hunt court concluded that by waiving his right to
appeal any “term of supervised release,” id. at 1028 (emphasis
added), the defendant “did not necessarily give up the right to
appeal a condition of such release,” id. Holding that the plea
agreement was ambiguous and that this ambiguity was
exacerbated by incorrect statements by the presiding judge
during the plea colloquy about what was appealable, the Hunt
court proceeded to evaluate the defendant’s claim on the
merits. Id. at 1028–29.
The ambiguity in Hunt’s plea agreement is not present
in Jackson’s. Unlike in Hunt, the list of waivers in Jackson’s
plea agreement includes “the right to appeal the sentence in this
case, including but not limited to any term of imprisonment
. . . .” SA 8 (emphasis added). The plea agreement’s use of
the phrase “including but not limited to” eliminates any
ambiguity as to whether the scope of the waiver is limited in
any fashion by the list of examples that follows.
The Hunt court held that the word “term” in a plea
agreement refers to “duration” rather than a condition. Id. at
1028 (comparing Black’s Law Dictionary 1698 (10th ed. 2014)
with Webster’s Third New International Dictionary,
Unabridged, 2358 (1993)). Unlike in Hunt, Jackson is
appealing the duration, or term of his sentence. Whether a
sentence runs consecutively or concurrently to another
sentence is inherently determinative of the duration of that
sentence.
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Further, the plea agreement explicitly carves out two
aspects of a potential sentence that Jackson did retain the right
to appeal: if the sentence was above the statutory maximum or
if it was above the guidelines range as determined by the court.
Under the canon of contract interpretation that inclusio unius
est exclusio alterius, it is clear from the language of the
agreement that Jackson has waived the right to appeal all
aspects of his sentence unless the appeal comes within one of
those two exceptions.
Finally, the confusion created by the plea colloquy in
Hunt in which the presiding judge may have misled the
defendant about what appeal rights he retained did not occur in
this case. As discussed above, the record supports that Jackson
knowingly, intelligently, and voluntarily entered into this plea
agreement. There is no reasonable way to interpret Jackson’s
plea agreement as exempting from the waiver the right to
appeal whether his prison sentence will run consecutively or
concurrently to another sentence.
In sum, we hold that Jackson unambiguously waived
his right to appeal the imposition of a consecutive sentence and
that he knowingly, intelligently, and voluntarily made that
waiver. Therefore, we do not reach the merits of Jackson’s
appeal of his sentence.
III. The Compassionate Release Motions
After being sentenced to 12 months in prison for
violating the terms of his supervised release in the Western
District of Virginia, Jackson filed for compassionate release in
that district via 18 U.S.C. § 3582(c)(1)(A). The Virginia
district court granted the motion, noting that his order
addressed only “the 12-month sentence imposed by [the
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Western District of Virginia] for Jackson’s supervised release
violation.” United States v. Jackson, No. 5:02-cr-30020, 2020
WL 2735724, *1 n.1 (W.D. Va. May 26, 2020). Because of
Jackson’s sentence in the District of Columbia, he remained in
custody.
Jackson then filed a motion for compassionate release
in the District Court for the District of Columbia. The district
court denied that motion. Months later, Jackson once again
moved for compassionate release. That motion and a
subsequent motion for reconsideration were both denied.
Jackson, now with counsel, appeals the denial of the two
separate motions for compassionate release arguing that the
denials were an abuse of the judge’s discretion.
We note that the government correctly asserts that
Jackson’s appeal from the denial of his second motion is
untimely. While we agree with the government that this is the
case, that defect is not jurisdictional. Since the arguments
asserted with respect to that ruling are intertwined with those
asserted with respect to the denial of his first motion, we will
allude to both decisions in the following discussion.
Compassionate release is created and governed by 18
U.S.C. § 3582(c)(1)(A). That statute authorizes the district
court to grant compassionate release under statutory
circumstances. The principal requirement of the statute is that
the defendant must present “extraordinary and compelling
reasons [that] warrant such a reduction[.]” § 3582(c)(1)(A)(i).
It also requires that the judge, in making such decision, act
consistently with the sentencing requirements of section
3553(a). § 3582(c)(1)(A). It further requires that the grant of
compassionate release must be consistent “with applicable
policy statements issued by the Sentencing Commission.”
§ 3582(c)(1)(A)(ii). We review the district court’s decision for
13
“abuse of discretion.” United States v. Long, 997 F.3d 342, 352
(D.C. Cir. 2021). However, arguments that were not raised
before the district court below are reviewed for plain error. Id.
at 353.
In this case, the district judge concluded that the
defendant had not presented any extraordinary and compelling
reason justifying his release. The defendant’s appeal is based
on the theory that the COVID-19 pandemic created such an
extraordinary and compelling reason. He offered no real
evidence that the presence of the disease was greater in his
place of confinement than anywhere else. More importantly, it
is difficult to say that the district judge abused his discretion by
finding that a pandemic affecting not only the entire prison
population, but the entire world, does not constitute an
extraordinary and compelling reason. Presumably, if it did, we
would have solved the overcrowding of prisons, as any prisoner
could come asking for compassionate release.
Jackson attempts to circumvent the weakness of his
claim of extraordinary and compelling reasons by stating that
he suffers from obesity and sleep apnea and that these
conditions put him at higher risk for serious illness should he
contract COVID-19. Neither of these is an extraordinary
circumstance. It certainly is not an abuse of discretion by the
district judge not to have been convinced by this argument.
Indeed, it is sometimes said that the nation suffers from an
epidemic of obesity. The Obesity Epidemic, CTRS. FOR DISEASE
CONTROL & PREVENTION, https://www.cdc.gov/cdctv/disease
andconditions/lifestyle/obesity-epidemic.html; Kumanyika &
Dietz, Solving Population-wide Obesity, NEW ENG. J. MED.
(Dec. 3, 2020).
Appellant raises specific objections to the district
judge’s decisions. First, the appellant claims that the court
14
erred in expressing the decisions’ consistency with what the
court deemed the applicable policy statement from the
Sentencing Commission. Appellant correctly points out that
we have since determined that there is no applicable policy
statement, and there was none at the time of the denial of his
motion. See Long, 997 F.3d at 355. However, this argument
was not raised below and is therefore reviewed under the plain
error standard. Perhaps there may be a plain error in failure to
anticipate a change in the law. See, e.g., id. at 357. But this is
not such a case. Plain error requires that the alleged error be
such as could have affected a defendant’s “substantial rights.”
United States v. Brown, 808 F.3d 865, 871 (D.C. Cir. 2015).
The district court made plain that its decision was not based on
the policy statement, but simply pointed out that it was
consistent with what the court believed to be an applicable
statement. Obviously then, it would not have affected the
result.
Finally, the district court’s rulings with respect to the
compassionate release motions must be consistent with the
§ 3553(a) sentencing factors. 18 U.S.C. § 3582(c)(1)(A). This
included an evaluation by the district court of the continuing
dangerousness of the movant. Jackson asserts that the district
court erred in relying on his dangerousness at the time of his
earlier criminal history. This hardly appears to be error. Where
a defendant has reverted to his dangerous criminal ways after
having faced a life sentence that was later reduced to a term of
years, it is hardly an abuse of discretion for a district judge not
to be convinced that he is no longer a dangerous person.
IV. Conclusion
In sum, we affirm the judgment on sentencing and the
orders on both motions for compassionate release.