United States v. Floyd Harshman

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2016
• Docket: 13-30030
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 17 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30030

Plaintiff-Appellee, D.C. No. 4:12-cr-00003-RRB-1 v.

FLOYD EVERETT HARSHMAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Argued and Submitted August 4, 2016 Anchorage, Alaska

Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.

Floyd Harshman appeals his conviction and sentence following entry of a

guilty plea pursuant to a plea agreement. He argues that the waiver of his appellate

rights in the plea agreement is unenforceable and that the district court abused its

discretion in denying his motion to withdraw his guilty plea. We dismiss his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal based on the waiver. See United States v. Rahman, 642 F.3d 1257, 1259

(9th Cir. 2011) (“Because an appeal from the denial of his motion to withdraw his

plea is an appeal from his convictions, Rahman’s appellate waiver extends to this

appeal.”).

1. Harshman has not demonstrated that the conditions of his pretrial

confinement rendered his waiver involuntary. See id. (observing that a waiver of

appellate rights is enforceable only if it is voluntarily made). The district court

engaged Harshman in a lengthy colloquy at his change-of-plea hearing, a colloquy

Harshman’s counsel did not challenge on appeal but rather acknowledged at oral

argument was “[a]ctually pretty – fairly well done.” The thorough colloquy

suffices to demonstrate that Harshman’s waiver was voluntary. See United States

v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996).

Moreover, Harshman informed the court during the plea colloquy that he

was voluntarily entering the plea agreement, waiving his right to appeal, and

pleading guilty, without ever mentioning the jail conditions. Instead, the colloquy

reveals that Harshman pleaded guilty because he determined that federal law would

preclude him from, as he put it, “being completely open and honest with my jury.”

Harshman gave as an example that he would be prohibited from urging the jury to

consider his potential sentence when evaluating his guilt. These statements, which

2 are entitled to a “strong presumption of veracity in subsequent proceedings

attacking the plea,” United States v. Yamashiro, 788 F.3d 1231, 1237 (9th Cir.

2015) (quoting United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008)), show

that Harshman considered the advantages of pleading guilty given the constraints

he would face at trial and then voluntarily chose to plead guilty in light of those

constraints, not because of the jail conditions.

2. Harshman also has not demonstrated that his appeal waiver is

unenforceable because the government has yet to urge Alaska to return money

taken from him upon arrest, as it promised to do in the plea agreement. See United

States v. Hernandez-Castro, 814 F.3d 1044, 1045 (9th Cir. 2016) (“A defendant is

released from his or her appeal waiver if the government breaches the plea

agreement.”). Disputes over the terms of a plea agreement “must be resolved by

determining, under an objective standard, ‘what the parties to the plea bargain

reasonably understood to be the terms of the agreement.’” United States v.

Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988) (emphasis added) (quoting

United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985)).

Here, Harshman pleaded guilty as provided in his plea agreement. But he

moved to withdraw his guilty plea three months later and then mailed a notice of

appeal one day after sentencing, giving “official notification of [his] intent to

3 appeal [his] case in its entirety” despite the court having imposed the agreed-upon

sentence. Harshman could not reasonably have understood the plea agreement to

permit him to challenge its validity on direct appeal and yet still obtain the

prospective benefits of the agreement before that challenge was resolved.1

3. Contrary to Harshman’s argument, a 2014 memorandum from the

Deputy Attorney General instructing federal prosecutors to decline to enforce

certain appeal waivers does not justify setting aside his waiver. Cf. United States

v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) (reiterating that the guidelines

set forth in the United States Attorneys’ Manual “do not create any rights in

criminal defendants”).

4. Finally, Harshman argues that his “lawyer provided ineffective

assistance of counsel in connection with the plea, but we decline to address that

issue on direct appeal. [Harshman] may raise such a claim in a collateral

1 Harshman having been sentenced in accordance with the plea agreement and his appeal now dismissed, the government is in a position to fulfill its promise to urge the state to return his money. If Harshman elects to collaterally attack his plea, that attack will be consistent with the express reservation of his right to do so under the terms of the plea agreement. We reject the government’s suggestion that Harshman must await completion of proceedings expressly contemplated by the agreement before the agreement is considered to take effect. See United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000) (observing that if a plea agreement remains ambiguous after examining the parties’ reasonable understanding, ambiguities are construed against the government). 4 proceeding, where a complete record can be developed.” United States v. Brizan,

709 F.3d 864, 867 (9th Cir. 2013); see also Rahman, 642 F.3d at 1260.

DISMISSED.