United States v. Ray

358 F. App'x 329
CourtCourt of Appeals for the Third Circuit
DecidedDecember 23, 2009
DocketNo. 08-4852
StatusPublished

This text of 358 F. App'x 329 (United States v. Ray) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Ray, 358 F. App'x 329 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

FISHER, Circuit Judge.

Douglas William Ray appeals his conviction for conspiracy to distribute and possess with the intent to distribute cocaine base. He argues that the District Court abused its discretion in denying his motion to withdraw his guilty plea. We conclude that Ray executed a valid waiver of his appellate rights that bars this appeal. Accordingly, the District Court’s judgment will be affirmed.

I.

We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.

Ray pled guilty to one count of conspiring to distribute and possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846. His plea agreement contained an appellate waiver provision that stated, in pertinent part, as follows:

Ray waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, ... Ray may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, ... Ray may take a direct appeal from the sentence.

(Supp.App.2.)

Prior to sentencing, Ray filed a pro se motion asking for new counsel. The District Court granted that motion and appointed new counsel. Ray thereafter filed another pro se motion in which he asked to withdraw his guilty plea. At a hearing on the motion before the District Court, Ray, with his new counsel present, stated that he had been pressured by his former counsel to accept the plea and asserted his innocence. The District Court found that Ray had entered his plea voluntarily and [331]*331denied his request to withdraw it. The Court sentenced Ray to 120 months in prison. This timely appeal followed.1

II.

On appeal, Ray argues that the District Court abused its discretion in denying his request to withdraw his guilty plea.2 He claims that he is actually innocent of the crime to which he pled guilty and that he can prove as much at trial. Where the government invokes an appellate waiver provision in a plea agreement, we must at the outset determine whether that provision militates against our exercise of jurisdiction over the merits of a defendant’s appeal. See United States v. Goodson, 544 F.3d 529, 533-37 (3d Cir.2008); United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007). We will decline to review the merits of Ray’s appeal if we find “(1) that the issues he pursues on appeal fall within the scope of his appellate waiver and (2) that he knowingly and voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver would work a miscarriage of justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.2008) (citations omitted).

Turning to the first part of our inquiry, we find that the sweep of Ray’s waiver is quite broad. It allows him to appeal only if the government appeals, if his sentence exceeds the statutory maximum, or if his sentence unreasonably exceeds the guideline range. The parties do not dispute that none of these circumstances is present here. Accordingly, the issue Ray submits for our review in this appeal falls squarely within the waiver’s ambit. See, e.g., id. at 927-28; Goodson, 544 F.3d at 536-37; Gwinnett, 483 F.3d at 204.

We ask next whether Ray’s waiver was knowing and voluntary. In so doing, we must ensure “that the [District [Cjourt informed [Ray] of, and determined that [Ray] understood the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence as Federal Rule of Criminal Procedure ll(b)(l)(N) requires.” United States v. Mabry, 536 F.3d 231, 239 (3d Cir.2008) (internal quotation marks, other alterations, and ellipsis omitted). The parties in this case do not dispute that the District Court did not comply with Rule ll(b)(l)(N). However, because Ray failed to object to the District Court’s Rule 11 violation, he must meet the plain-error standard. See Goodson, 544 F.3d at 539 & n. 9. To that end, he must establish “(1) that there was an error, i.e., a deviation from a legal rule, (2) that the error was ‘plain,’ i.e., clear or obvious, and (3) that the error affected his substantial rights.” Corso, 549 F.3d at 928 (citations omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Goodson, 544 F.3d at 539 (quotation marks, alteration, and citation omitted).

Under this Court’s precedents, the District Court’s failure to confirm that Ray understood that he was relinquishing the bulk of his appellate rights clearly constitutes error that is plain. See Corso, 549 F.3d at 929 (“Corso has unquestionably met his burden under the first two prongs of the plain-error analysis.”); Goodson, 544 F.3d at 540 (finding plain error where “there was no effort to verify that Goodson understood the breadth of the waiver or to underscore the fact that the waiver meant that, subject to three very narrow exeep[332]*332tions, Goodson was giving up the right to appeal both the validity of his plea and the legality of his sentence”). Still, Ray must meet his burden of showing that his substantial rights were affected. To do so, he must demonstrate “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). In determining whether Ray has met his burden, we must consider the “whole record.” Goodson, 544 F.3d at 540 (quoting United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)).

The record reflects that Ray is a high school graduate who has no difficulty understanding and communicating in English. Furthermore, although the District Court did not explicitly advise Ray of the appellate waiver provision, the prosecution recited the terms of the waiver in full during Ray’s plea hearing. The District Court thereafter asked Ray if he understood all of the terms contained in the plea agreement. Ray responded unequivocally in the affirmative.

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Related

Blackledge v. Allison
431 U.S. 63 (Supreme Court, 1977)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
United States v. Dominguez Benitez
542 U.S. 74 (Supreme Court, 2004)
United States v. Melvinisha Brown
250 F.3d 811 (Third Circuit, 2001)
United States v. Gul Khan Khattak
273 F.3d 557 (Third Circuit, 2001)
United States v. Angelica Gwinnett
483 F.3d 200 (Third Circuit, 2007)
United States v. Hoffecker
530 F.3d 137 (Third Circuit, 2008)
United States v. Goodson
544 F.3d 529 (Third Circuit, 2008)
United States v. Corso
549 F.3d 921 (Third Circuit, 2008)
United States v. Mabry
536 F.3d 231 (Third Circuit, 2008)

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Bluebook (online)
358 F. App'x 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ray-ca3-2009.