By: Diana C. Castro
Today, in a published opinion, the Fourth Circuit Court of Appeals affirmed the District Court’s decision upholding a waiver to appeal a mandatory minimum sentence based on new United States Supreme Court precedent.
Defendant committed Armed Robbery at a Family Dollar Store and Subsequently Accepted a Plea Agreement.
Security cameras at a Family Dollar store captured Defendant Sherwin Archie, armed, demanding money from the cashier. Days later, police recovered the firearm used in the robbery when they executed a search warrant on Archie’s home. Archie subsequently confessed to the Family Dollar robbery.
Taking a plea deal, Archie pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) (Count One); Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Two); and using and carrying a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). In exchange for the guilty plea, the state dismissed three remaining charges.
Under the terms of the plea deal, Archie knowingly and expressly waived all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the advisory Guideline range established at sentencing, and waived all rights to contest the conviction or sentence in any post-conviction proceeding. The plea agreement advised Archie of the statutory sentencing range for each charge and noted that, based on his criminal history, he could face a sentencing enhancement under the ACCA.
With regards to using and carrying a firearm in furtherance of a crime of violence, the District Court recognized that the seven-year minimum sentence applied only when the firearm was “brandished” during the crime, and the indictment did not assert brandishing as a separate element. Government counsel argued that brandishing was a sentencing factor that did not have to be specifically alleged in the indictment. Defense counsel did not object and the District Court accepted Archie’s guilty plea.
In preparation for sentencing, the United States Probation Office’s presentence investigation report (“PSR”) designated Archie an armed career criminal under the ACCA based on three prior felony convictions. The ACCA designation caused Archie’s statutory minimum sentence to increase. The PSR also included a minimum sentence for Count Three because the investigatory evidence established that Archie had brandished the firearm during the Family Dollar robbery.
Before sentencing, Archie objected to his career offender designation under the ACCA, arguing that the Government lacked adequate factual support for one of the previous convictions.
The District Court overruled Archie’s objection, concluding the records were sufficient by a preponderance of the evidence. Adopting the PSR, the District Court sentenced Archie to the mandatory minimum.
Four months after Archie’s sentencing, the Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013). In Alleyne, the Court overruled existing precedent and held that “any fact that increases the mandatory minimum is an ‘element’that must be submitted to the jury” and found beyond a reasonable doubt. 133 S. Ct. at 2155. In Alleyne, as here, the mandatory minimum sentence was based on the court’s finding by a preponderance of the evidence at sentencing that a firearm was “brandished,” in violation of 18 U.S.C. § 924. The Supreme Court reversed and vacated the defendant’s sentence because the “[j]udge rather than the jury, found brandishing, thus violating [his] Sixth Amendment rights.” Id. at 2163-64.
Fourth Circuit Considered Whether the Defendant Waived the Right to Argue on Appeal that the District Court Improperly Enhanced His Sentence Based on Judicially Determined Facts in Violation of Alleyne v. United States.
The Fourth Circuit cited precedent to support the conclusion that when the Government seeks enforcement of an appeal waiver and there is no claim that the Government breached its obligations under the plea agreement, the waiver will be enforced to preclude a defendant from appealing a specific issue if the record establishes that the waiver is valid and the issue being appealed is within the scope of the waiver.
More narrowly, the Fourth Circuit rejected Archie’s challenge that his Alleyne claim falls outside the scope of the waiver appeal.
At the time of Archie’s sentencing, Supreme Court precedent under Harris v. United States, 536 U.S. 545, 568 (2002), stated that factors triggering mandatory minimum sentences did not need to be alleged in the indictment, submitted to the jury, or proven beyond a reasonable doubt. Thus, the District Court properly applied the law under Harris.
Despite a Change in Precedent, a Party Cannot Request to Re-Bargain the Waiver of an Appeal.
The Fourth Circuit addressed the proper scope of an appeal waiver in light of a subsequent change in the law in United States v. Blick, 408 F.3d 162 (4th Cir. 2005). In that case, the Fourth Circuit focused largely on the idea that “[p]lea bargains rest on contractual principles, and each party should receive the benefit of its bargain.” Consequently, although the law changed, the defendant’s expectations did not change. A party cannot ask to re-bargain the waiver of an appeal based on changes in the law. Here, Archie assumed the risk of accepting the plea agreement in exchange for the Government’s concessions, and he was sentenced in the manner agreed upon.
Furthermore, the Fourth Circuit refused to invalidate the waiver holding that it has previously only done so when sentencing court violated a fundamental constitutional or statutory right that was firmly established at the time of sentencing.
In essence, the Fourth Circuit held that Archie’s claim does not fall within the scope of the valid appeal waiver because “defendants cannot knowingly and voluntarily enter an appeal waiver, receive a sentence that fully complies with the law applicable at the time of sentencing, and then, when that law later changes, argue that the issue falls outside the binding scope of the waiver.”
Fourth Circuit Considered Whether the Government Presented Sufficient Evidence to Sustain the Defendant’s Career Offender Designation Under the ACCA.
Archie argued that several of the computerized used to establish one of his previous violent felony conviction contained inconsistent dates, and one document included a criminal indictment number tied to another defendant. According to Archie, these inconsistencies, when coupled with the age of the conviction, “insert[ed] the possibility [of] more than just scrivener’s error but, indeed, wholesale mistake.”
Using a Deferential Standard of Review, the Fourth Circuit held that Certain Inconsistencies are Not Enough to Overturn the Trial Court’s Findings When There is Additional Evidence Indicating That The Mistake Was Likely a Scrivener’s Error.
Reviewing the District Court’s judgment for clear error, the Fourth Circuit held that when faced with records that contain inconsistencies, such as different dates of the same offense, the court has previously concluded that certain discrepancies do not overturn the trial court’s conclusion when there is additional evidence to indicate that the mistake was likely a typographical error. Thus, as most of Archie’s arguments were based on allegations of such mistakes, the Fourth Circuit declined to disturb the District Court’s finding.
Fourth Circuit Affirmed the District Court’s Sentence.