United States v. Joseph Smith

525 F. App'x 294
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 30, 2013
Docket11-5882
StatusUnpublished
Cited by1 cases

This text of 525 F. App'x 294 (United States v. Joseph Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joseph Smith, 525 F. App'x 294 (6th Cir. 2013).

Opinions

COOK, Circuit Judge.

Joseph Smith, who pleaded guilty to conspiracy to possess and distribute more than 50 grams of crack cocaine and received a stipulated 10-year sentence under Federal Rule of Criminal Procedure 11(c)(1)(C), appeals the district court’s denial of his motion to withdraw the plea. Citing the plea agreement’s appellate waiver, the government moves to dismiss the appeal, and a motions panel of this [295]*295court referred the motion for consideration with the merits issues. Having completed that review, we now GRANT the government’s motion and DISMISS this appeal.

I.

In United States v. Toth, we joined the prevailing authority of our sister circuits by holding that a valid plea agreement appellate waiver forecloses appeals arising from a district court’s denial of a motion to withdraw the plea. 668 F.3d 374, 378-79 (6th Cir.2012). Applying Toth, we will enforce Smith’s appellate waiver according to its terms, and deny review of the motion to withdraw, so long as he entered the agreement knowingly and voluntarily. Id. at 378.

Instead of directly challenging the knowing and voluntary acceptance of the plea agreement, Smith’s appellate brief focuses on a number of his plea-colloquy statements as demonstrating his “serious doubt ... as to whether he believed he was guilty” of a drug conspiracy, as opposed to just drug use. He also suggests that his potential eligibility for a mandatory life sentence — if the government elected to file an information under 21 U.S.C. § 851 concerning his prior drug convictions — overwhelmed his ability to knowingly and voluntarily plead guilty. The plea hearing transcript shows otherwise.

The transcript reflects that Smith repeatedly hedged in admitting the drug conspiracy, noting his doubts that the government could prove his participation (R. 896, Plea Hr’g Tr. at 39-41) — not exactly a claim of actual innocence. But when the magistrate judge rejected Smith’s nonre-sponsive answers (see id. at 43-44) and directed him to the factual basis for written plea agreement’s conspiracy charge, he repeatedly and unequivocally admitted his guilt (id. at 50-51). Smith did at one point express “I just can’t afford a lot of time. I just can’t — I just can’t risk that.” (Id. at 44.) But this statement preceded his repeated admissions to participating in the drug conspiracy (id. at 50-51), which followed repeated reminders from the magistrate judge that the plea must be voluntary and the factual predicate must be true and match the charged crime (id. at 7-8, 43-44, 50).1

[296]*296The transcript further reflects Smith’s knowing and voluntary waiver of his appellate rights, despite his initial inconsistent answers on that point. After discussing Smith’s waiver of his right to appeal or collaterally attack his sentence, the magistrate judge ensured that Smith knew he “[was] giving up all of [his] rights to make an attack upon this sentence and upon [the] conviction.” (Id. at 28.) Smith initially balked, but upon further questioning, conceded “there is not really much [I] can do once [I] get this — once this plea agreement is filed.” (Id. at 23-24.) The magistrate judge asked Smith to confirm his understanding that “[he was] giving up [his] right to really make any kind of attack on this by signing off on this agreement,” and Smith agreed he “pretty much figured that out when [he] read [the plea agreement].” (Id. at 24.) Then, after the government summarized the key terms, Smith again acknowledged his understanding and assent to the plea agreement, including the appellate waiver that “waiv[es] his right to appeal his conviction or sentence” and “waiv[es] his right to contest or challenge his conviction or sentence in any other way.” (See id. at 33-34.) Smith’s appellate brief does not address his understanding of the appellate waiver at all.

In his response to the government’s motion to enforce the appellate waiver, Smith vaguely disputes his knowing and voluntary waiver of his right to appeal, suggesting that the magistrate judge’s description of the waiver during the plea colloquy left open the possibility that he could appeal the conviction. (Appellant Waiver Resp. Br. at 2-4 (citing R. 896, Plea Hr’g Tr. at 20-21).) The above-quoted portions of the plea-hearing transcript belie Smith’s claim that the magistrate judge’s statements “could logically led [sic] the defendant to believe that he could not appeal the sentence but that an appeal on the conviction was still possible.”

II.

Notwithstanding the plea colloquy, the dissent focuses on the reduced penalties of the Fair Sentencing Act (FSA), an argument wholly absent from Smith’s response to the government’s motion to enforce the appellate waiver. Though Smith introduces this issue in his merits brief on appeal, the government correctly notes that he failed to present the issue properly to the district court. Indeed, Smith omitted the argument from his motion-to-withdraw brief, only to raise a vague FSA-penalty issue in his reply brief. Specifically, that reply brief acknowledges: (i) that the FSA, enacted in August 2010, reduces the mandatory minimum for Smith’s crime from 10 years to 5 years; (ii) that it is unclear whether the courts will give retroactive effect to FSA penalties to defendants like Smith, who were convicted before the FSA;2 and (iii) that counsel did not advise Smith that the FSA might reduce his mandatory minimum. (R. 881 at 4.) Understandably, the district court’s opinion denying the motion did not address this issue raised for the first time in his reply brief. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) (“While we have never articulated precisely what constitutes raising an issue with the district court, we have found issues to be waived when they are raised for the first time in motions requesting reconsid[297]*297eration or in replies to responses.”); accord Grider Drugs, LLC v. Express Scripts, Inc., 2012 WL 4009703, at *2-3 (6th Cir. Sept. 13, 2012).

The dissent would allow this forfeited argument and invalidate the plea agreement on this ground, believing Smith’s lack of knowledge of the FSA’s reduced penalties rendered his plea “not knowingly entered.” Though we retain the discretion to hear forfeited arguments to prevent a “plain miscarriage of justice,” Scottsdale Ins. Co., 513 F.3d at 552 (collecting authority, but noting that “[w]e have rarely exercised such discretion”), we decline to excuse Smith’s forfeiture here because he does not show that the incorrect advice regarding the statutory minimum (10 years pre-FSA, 5 years now) — an error under Federal Rule of Criminal Procedure ll(b)(l)(I) — affected his knowing and voluntary decision to accept the plea agreement’s stipulated 10-year sentence.3 See United States v. Martin, 668 F.3d 787

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525 F. App'x 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-smith-ca6-2013.