[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 21, 2005
No. 04-10874 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-60049-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA ANN RUBBO,
a.k.a. Angie,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 21, 2005)
Before CARNES and COX, Circuit Judges, and MILLS *, District Judge.
*
Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
CARNES, Circuit Judge:
This Court has previously upheld the enforceability of appeal waivers that
are knowingly and voluntarily entered. E.g., United States v. Bushert, 997 F.2d
1343 (11th Cir. 1993). We have explained how they serve important interests of
the defendant as well as the government, United States v. Buchanan, 131 F.3d
1005, 1008 (11th Cir. 1997), and we could have added the judicial system itself to
the list of beneficiaries. We have also held that “[a] waiver of the right to appeal
includes a waiver of the right to appeal difficult or debatable legal issues—indeed,
it includes a waiver of the right to appeal blatant error.” United States v. Howle,
166 F.3d 1166, 1169 (11th Cir. 1999) (footnote omitted).
Angela Rubbo does not dispute any of that, but she does contend that the
appeal waiver she agreed to as part of her plea bargain ought not prevent her from
raising sentencing issues arising under the Supreme Court’s recent decision in
United States v. Booker, 543 U.S. ___, ___ S.Ct. ___ , 2005 WL 50108 (2005).
Her argument centers around the “maximum permitted by statute” exception in the
waiver she entered. It is an interesting argument, but ultimately not a persuasive
one.
A sixty-three count indictment charged Rubbo with mail fraud, wire fraud,
money laundering, and various conspiracies, stemming from a multi-million dollar
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telemarketing fraud operation that she and her three sons ran. Through plea
negotiations with prosecutors, Rubbo’s attorney managed to whittle the charges
down to one: conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §
371. In return for the government agreeing to dismiss the remaining sixty-two
counts against her and for other favors at sentencing, Rubbo agreed to plead guilty,
cooperate, and waive her right to appeal any sentence she received subject to a few
exceptions. After two hearings, the district court granted Rubbo’s motion to
change her plea to guilty, accepted that new plea, and adjudicated Rubbo guilty of
the one count of violating § 371.
During the course of one of those hearings, the district court engaged in a
colloquy with Rubbo in which it ensured that she fully understood the appeal
waiver part of her plea agreement and voluntarily consented to it. To the extent
that Rubbo contends that she did not knowingly and voluntarily agree to the appeal
waiver, we reject that contention because it is inconsistent with the record.
At sentencing, the district court imposed over Rubbo’s objections two
enhancements. One was a two-level enhancement either because the offense
involved relocating a fraudulent scheme to another jurisdiction to elude law
enforcement, U.S.S.G. § 2F1.1(b)(5)(A) (Nov. 1998), or because it used
sophisticated means, U.S.S.G. § 2F1.1(b)(5)(C) (Nov. 1998). The other was a two-
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level enhancement for being an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive, pursuant to U.S.S.G.
§ 3B1.1(c) (Nov. 1998). The district court ultimately sentenced Rubbo to forty-
eight months’ imprisonment, twelve short of the statutory cap of sixty months for
the crime. See 18 U.S.C. § 371.
Notwithstanding her promise that she would not appeal, Rubbo did. She
filed a brief contending that the impositions of the enhancements were erroneous
applications of the guidelines. The government responded with a motion to
dismiss Rubbo’s appeal based upon the waiver. See generally Buchanan, 131 F.3d
at 1008–09 (dismissal of appeal based upon waiver should, if possible, occur on
motion before the government’s brief is filed).
Rubbo filed a reply to the government’s dismissal motion in which she
indicated that in light of the intervening decision in Blakely v. Washington, 542
U.S. ___, 124 S. Ct. 2531 (2004), she wanted to raise on appeal the issue of
whether the judge-imposed enhancements she had attacked in her initial brief,
which coincidentally had been filed on the very day that Blakely was released,
were unconstitutionally imposed in violation of the Sixth Amendment. Rubbo
argued that issue was outside the scope of her appeal waiver because, if she were
right on the merits of it, the sentence imposed on her exceeded the “statutory
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maximum” as defined in Blakely and her waiver explicitly excepted sentences in
excess of the statutory maximum.1
The appeal waiver paragraph in the plea agreement that Rubbo signed says
this:
The defendant is aware that Title 18, United States Code,
Section 3742 affords the defendant the right to appeal the
sentence imposed in this case. Acknowledging this, in
exchange for the undertakings made by the United States
in this plea agreement, the defendant hereby waives all
rights conferred by Title 18, United States Code, Section
3742 to appeal any sentence imposed, including any
restitution order, or to appeal the manner in which the
sentence was imposed, unless the sentence exceeds the
maximum permitted by statute or is the result of an
upward departure from the guideline range the Court
establishes at sentencing. The defendant further
understands that nothing in this plea agreement shall
affect the government’s right and/or duty to appeal as set
forth in 18 U.S.C. § 3742(b). However, if the United
States appeals the defendant’s sentence pursuant to
Section 3742(b), the defendant shall be released from the
waiver of appellate rights. The defendant understands
that, although the defendant will be sentenced in
conformity with the Sentencing Guidelines, by this
agreement the defendant waives the right to appeal the
1
Because Rubbo did not raise the Blakely issue in her opening brief, the government
contends that she is procedurally barred from arguing it. See United States v. Levy, 379 F.3d
1241, 1242–45 (11th Cir.) (Blakely-type claim waived by failure to raise it in initial brief on
appeal), reh’g denied 391 F.3d 1327 (en banc) (2004); see also United States v. Njau, 386 F.3d
1039, 1042 (11th Cir. 2004) (same). Rubbo urges us not to apply the usual rule because she told
the government in her response to its motion to dismiss that she was going to raise the Blakely
issue and thereby gave the government an opportunity to brief the issue in its own opening brief.
We need not address that novel procedural argument because Rubbo’s appeal is due to be
dismissed as a result of the appeal waiver irrespective of any procedural bar.
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sentence on the basis that the sentence is the result of an
incorrect application of the Sentencing Guidelines.
The general waiver language—“all rights conferred by Title 18, United States
Code, Section 3742 to appeal any sentence imposed, including any restitution
order, or to appeal the manner in which the sentence was imposed”—certainly is
broad enough to cover any issues arising from Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), and its progeny, up to and including Booker. Rubbo
has not contended to the contrary. Her point is that there is an exception to that
broad waiver. We have emphasized in the block quote the language setting out
that exception, which is the linchpin to Rubbo’s contention that her appeal waiver
does not apply.
Rubbo’s position is not outlandish. The plea agreement language permitting
her to escape the waiver if “the sentence exceeds the maximum permitted by
statute” is semantically similar to the “statutory maximum” term that was a key
component of the Supreme Court’s reasoning and analysis in Blakely. In its
opinion in that case, the Court gave this definition of that term: “Our precedents
make clear, however, that the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2537
(emphasis omitted). Two days before we heard oral argument in this case, the
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Supreme Court released its Booker decision, and the Blakely issue discussed in
Rubbo’s opposition to the motion to dismiss this appeal became a Booker issue.
The Supreme Court in Booker quoted the “statutory maximum” definition from its
Blakely opinion. See Booker, 2005 WL 50108, at *7.
Because the sentence the district court imposed on Rubbo goes beyond that
permitted on the basis of the facts she admitted during her plea colloquy, Rubbo
contends that it exceeds the statutory maximum sentence for Booker purposes.
Given that, she says that her sentence “exceeds the maximum permitted by statute”
for purposes of the exception to the appeal waiver contained in her plea agreement.
The problem with Rubbo’s contention is its invisible premise, which is that
“statutory maximum” for Booker purposes is the same thing as “the maximum
permitted by statute” for purposes of Rubbo’s appeal waiver. The two are not the
same. The context in which the terms are used and the meaning they convey are
different. After all, “[a] word is not a crystal, transparent and unchanged, it is the
skin of a living thought and may vary greatly in color and content according to the
circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418,
425, 38 S. Ct. 158, 159 (1918) (Holmes, J.).
In the Apprendi/Booker line of decisions, the Supreme Court used the term
“statutory maximum” to describe the parameters of the rule announced in those
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decisions, a rule that had nothing to do with the scope of appeal waivers. Booker,
2005 WL 50108, at *7; Blakely, 124 S. Ct. at 2536–37; Apprendi, 530 U.S. at 487
n.13 & 490, 120 S. Ct. at 2361 n.13 & 2362–63. The term was defined in a
specialized, which is to say a non-natural, sense. It was defined that way not only
for semantic convenience but also in order to justify and explain the holdings the
Court entered in those decisions. Everyone knows that a judge must not impose a
sentence in excess of the maximum that is statutorily specified for the crime. See,
e.g., Bushert, 997 F.2d at 1350 n.18 (describing as “axiomatic” the rule that “a
court of the United States may not impose a penalty for a crime beyond that which
is authorized by statute”). By labeling a sentence that the judge may not impose
under the Apprendi/Booker doctrine as one in excess of the “statutory maximum,”
the Court may have sought to call into play that well-known principle of law.
Whether it did, however, is not the point for present purposes. The point
here is that the definition of “statutory maximum” the Supreme Court used to
describe and explain its holdings in those cases says nothing about what Rubbo and
the government meant when they used the term “the maximum permitted by
statute” in the appeal waiver. This is not a matter of legal research. It is a question
of the parties’ intent.
8
Plea bargains, we have recognized, are like contracts and should be
interpreted in accord with what the parties intended. See Howle, 166 F.3d at 1168
(“A plea agreement is, in essence, a contract between the Government and a
criminal defendant.”); Allen v. Thomas, 161 F.3d 667, 671 (11th Cir. 1997) (“[W]e
have said that the construction of plea agreements is governed generally by the
principles of contract law, as we have adapted it for purposes of criminal law . . .
.”) (internal marks and citation omitted); United States v. Knight, 867 F.2d 1285,
1288 (11th Cir. 1989) (“When [the defendant] accepted the plea offer, her
discussions with [a DEA agent] were no longer with a view to an agreement; the
negotiations had ended and a plea contract was formed.”). There is nothing to
indicate that when these parties used the language “exceeds the maximum
permitted by statute” to describe the sentence from which Rubbo would be
permitted to appeal they intended those words to have anything other than their
usual and ordinary meaning. That meaning describes the upper limit of
punishment that Congress has legislatively specified for violation of a statute; for
example, five years for violation of 18 U.S.C. § 371.
For purposes of the exception to the appeal waiver, the parties chose to
define the maximum sentence in terms of what is “permitted by statute,” not in
terms of what is permitted by the Apprendi line of decisions that was evolving at
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the time. We asked counsel for Rubbo at oral argument whether there was
anything in the record to indicate that the parties intended to reserve a right for her
to appeal any Apprendi-type issues. He replied with commendable candor that
there was not, and that if that had been the intent Rubbo would have raised an
Apprendi issue at the sentence proceeding, which she did not.
We take our final point from the D.C. Circuit’s decision last month in United
States v. West, 392 F.3d 450 (D.C. Cir. 2004), which addressed the question of
whether an exception to a waiver allowing a defendant to appeal if “the Court
sentences [him] to a period of imprisonment longer than the statutory maximum”
permitted an appeal on Apprendi/Blakely grounds. The defendant in that case also
relied upon the definition of “statutory maximum” contained in the Blakely
opinion, but the Court rejected as implausible the idea that the parties could have
intended that meaning. Id. The Court added that giving such an interpretation to
the term “statutory maximum” would also be inconsistent with other provisions of
the plea agreement, thereby violating a cardinal principle of contract interpretation
that a writing is to be interpreted as a whole. Id. (citing Restatement (Second) of
Contracts § 202(2) (1981)). It would be inconsistent, because other provisions of
the plea agreement set out the statutory maximum punishments the defendant could
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receive for the two charges and, of course, they did so in terms of the punishment
permitted under the terms of the statutes themselves. Id.
The same is true in the present case. A provision in the plea agreement
states that Rubbo understands and acknowledges that “the Court may impose a
statutory maximum term of imprisonment of up to five (5) years, followed by a
term of supervised release of up to three (3) years, and a fine of up to $250,000,”
and order the defendant to pay restitution. In that provision, “statutory maximum”
unquestionably means the maximum permitted by the statute itself, undiminished
by any Apprendi/Booker considerations. If we were to read the language in the
appeal waiver provision in this same agreement to mean anything else, we would
be interpreting materially identical terms in the same contract to mean substantially
different things. That we will not do.
In summary, the right to appeal a sentence based on Apprendi/Booker
grounds can be waived in a plea agreement. Broad waiver language covers those
grounds of appeal. Absent some indication that the parties intended otherwise,
when an exception to an appeal waiver is stated in terms of a sentence imposed in
excess of the statutory maximum, those terms should be given their ordinary and
natural meaning. Ordinarily and naturally, “statutory maximum” and “the
maximum permitted by statute” refer to the longest sentence that the statute which
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punishes a crime permits a court to impose, regardless of whether the actual
sentence must be shortened in a particular case because of the principles involved
in the Apprendi/Booker line of decisions.
The government’s motion to dismiss this appeal on the basis of the appeal
waiver is granted. APPEAL DISMISSED.
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