REVISED SEPTEMBER 16, 1999
UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 98-50271 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SEDRICK ROBINSON,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Western District of Texas ___________________________________________________ August 30, 1999
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Appellant Sedrick Robinson challenges the sentence imposed
upon him by the district court for possession with intent to
distribute in excess of 50 grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1). Robinson contends that the district court
erred in sentencing him as a career offender based on his two prior
convictions for delivery of cocaine. The Government first argues
that Robinson cannot bring this appeal because, as a term of his
plea agreement, he waived his right to appeal his sentence.
Alternatively, the Government contends that the district court
properly sentenced Robinson as a career offender. We hold that Robinson has the right to appeal because the record does not
demonstrate that he knowingly and voluntarily waived his right to
appeal. We also hold that the district court erred in relying on
convictions that were related in sentencing him as a career
offender.
I.
On April 16, 1997, Robinson was indicted for possession with
intent to distribute in excess of 50 grams of cocaine base (Count
One) and cocaine (Count Two), in violation of 21 U.S.C. §
841(a)(1). Robinson pleaded guilty to Count One pursuant to a
written plea agreement with the Government.
Robinson’s Presentence Investigation Report (“PSI”) determined
that Robinson was a career offender under the United States
Sentencing Guidelines, based on his two prior state convictions for
delivery of cocaine. Robinson objected to the PSI, arguing that
the two prior convictions were related and thus should be counted
as one conviction for guidelines purposes. The district court
overruled the objection and adopted the PSI’s calculation,
sentencing Robinson, as a career offender, to 262 months
imprisonment. Robinson appeals his sentence.
II.
The Government first contends that Robinson may not appeal his
sentence because he waived his right to appeal his sentence in the
plea agreement. The written plea agreement included the following
waiver-of-appeal provision:
4. The Defendant is aware that his sentence will be imposed
2 in conformity with the Federal Sentencing Guidelines and Policy Statements, which may be up to the maximum allowed by statute for his offenses. He is also aware that the sentence to be imposed is not subject to parole. By entering into this agreement, and as a term of this agreement, the Defendant voluntarily and knowingly waives his right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742; provided, however, that this waiver does not extend to his right to appeal any upward departure pursuant to U.S.S.G. § 5K2.0 from the Guidelines range found by the district court.
Although a defendant may waive his right to appeal as part of a
plea agreement with the Government, this waiver must be “‘informed
and voluntary.’” United States v. Baty, 980 F.2d 977, 978 (5th
Cir. 1992) (quoting United States v. Melancon, 972 F.2d 566, 567
(5th Cir. 1992)). Robinson argues that because the district court
did not explain the waiver-of-appeal provision at the plea
colloquy, the record does not demonstrate that the waiver was
informed or voluntary.
Our review of the record confirms that the district court’s
discussion of the plea agreement with Robinson at the Rule 11
hearing included no explanation of the waiver of appeal provision.1
1 During Robinson’s Rule 11 hearing, the following exchange took place:
The Court: Okay. Now has there been a plea agreement entered into between you and your lawyer and the lawyer for the government? The Defendant: Yes, sir, Your Honor. The Court: All right. Ms. Garcia [lawyer for the Government], what is the plea agreement? Ms. Garcia: Your Honor, in exchange for Mr. Sedrick Robinson’s plea to Count One of the indictment the government has agreed not to oppose a three-level reduction for acceptance of responsibility, not to oppose his request that he be sentenced at the bottom of the applicable guideline range, and at the time of sentencing, with leave of Court, move to dismiss Count Two of the indictment.
3 This Court has stated that “a defendant’s waiver of her right
to appeal deserves and, indeed, requires the special attention of
the district court.” Baty, 980 F.2d at 979. “It is up to the
district court to insure that the defendant fully understands her
right to appeal and the consequences of waiving that right.” Id.
See also United States v. Portillo, 18 F.3d 290, 293 (5th Cir.
1994).
It is clear from the plea colloquy that the district court did
not ask Robinson whether he had read the written plea agreement and
understood it. More importantly, the district court did not warn
Robinson that he was waiving his right to appeal. Although the
Government contends that the district court did mention the waiver-
of-appeal provision later during the Rule 11 hearing, the record
shows only that, during a general discussion of the Sentencing
Guidelines, the district court stated: “And even though in your
plea agreement you might have waived the right to appeal, if I
sentence you above the guidelines then you still have the right to
appeal, if I sentence you below the guidelines then the government
has the right to appeal.” It is clear to us that this was part of
the district court’s explanation of the role the sentencing
guidelines play in sentencing. This general statement does not
The Court: All right. Mr. Vaughn [lawyer for Robinson], is this your understanding of the plea agreement? Mr. Vaughn: Yes, sir, Your Honor. The Court: All right. Mr. Robinson, do you understand it? The Defendant: Yes, I do, Your Honor. The Court: And you agreed to it? The Defendant: Yes, I do, Your Honor.
4 satisfy the requirement that the court “insure that the defendant
fully understand her right to the waiver-of-appeal and the
consequences of waiving that right.” Baty, 980 F.2d at 279.
Therefore, we conclude that the record made at the Rule 11 hearing
was not adequate to demonstrate that Robinson knowingly and
voluntarily waived his right to appeal. The waiver is therefore not
effective.2
III.
We now turn to the substance of Robinson’s appeal. Robinson’s
PSI originally calculated the offense level for his possession with
intent to distribute cocaine base offense as 31 and his criminal
history category as I. The applicable guidelines sentencing range
Free access — add to your briefcase to read the full text and ask questions with AI
REVISED SEPTEMBER 16, 1999
UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 98-50271 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SEDRICK ROBINSON,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Western District of Texas ___________________________________________________ August 30, 1999
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Appellant Sedrick Robinson challenges the sentence imposed
upon him by the district court for possession with intent to
distribute in excess of 50 grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1). Robinson contends that the district court
erred in sentencing him as a career offender based on his two prior
convictions for delivery of cocaine. The Government first argues
that Robinson cannot bring this appeal because, as a term of his
plea agreement, he waived his right to appeal his sentence.
Alternatively, the Government contends that the district court
properly sentenced Robinson as a career offender. We hold that Robinson has the right to appeal because the record does not
demonstrate that he knowingly and voluntarily waived his right to
appeal. We also hold that the district court erred in relying on
convictions that were related in sentencing him as a career
offender.
I.
On April 16, 1997, Robinson was indicted for possession with
intent to distribute in excess of 50 grams of cocaine base (Count
One) and cocaine (Count Two), in violation of 21 U.S.C. §
841(a)(1). Robinson pleaded guilty to Count One pursuant to a
written plea agreement with the Government.
Robinson’s Presentence Investigation Report (“PSI”) determined
that Robinson was a career offender under the United States
Sentencing Guidelines, based on his two prior state convictions for
delivery of cocaine. Robinson objected to the PSI, arguing that
the two prior convictions were related and thus should be counted
as one conviction for guidelines purposes. The district court
overruled the objection and adopted the PSI’s calculation,
sentencing Robinson, as a career offender, to 262 months
imprisonment. Robinson appeals his sentence.
II.
The Government first contends that Robinson may not appeal his
sentence because he waived his right to appeal his sentence in the
plea agreement. The written plea agreement included the following
waiver-of-appeal provision:
4. The Defendant is aware that his sentence will be imposed
2 in conformity with the Federal Sentencing Guidelines and Policy Statements, which may be up to the maximum allowed by statute for his offenses. He is also aware that the sentence to be imposed is not subject to parole. By entering into this agreement, and as a term of this agreement, the Defendant voluntarily and knowingly waives his right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742; provided, however, that this waiver does not extend to his right to appeal any upward departure pursuant to U.S.S.G. § 5K2.0 from the Guidelines range found by the district court.
Although a defendant may waive his right to appeal as part of a
plea agreement with the Government, this waiver must be “‘informed
and voluntary.’” United States v. Baty, 980 F.2d 977, 978 (5th
Cir. 1992) (quoting United States v. Melancon, 972 F.2d 566, 567
(5th Cir. 1992)). Robinson argues that because the district court
did not explain the waiver-of-appeal provision at the plea
colloquy, the record does not demonstrate that the waiver was
informed or voluntary.
Our review of the record confirms that the district court’s
discussion of the plea agreement with Robinson at the Rule 11
hearing included no explanation of the waiver of appeal provision.1
1 During Robinson’s Rule 11 hearing, the following exchange took place:
The Court: Okay. Now has there been a plea agreement entered into between you and your lawyer and the lawyer for the government? The Defendant: Yes, sir, Your Honor. The Court: All right. Ms. Garcia [lawyer for the Government], what is the plea agreement? Ms. Garcia: Your Honor, in exchange for Mr. Sedrick Robinson’s plea to Count One of the indictment the government has agreed not to oppose a three-level reduction for acceptance of responsibility, not to oppose his request that he be sentenced at the bottom of the applicable guideline range, and at the time of sentencing, with leave of Court, move to dismiss Count Two of the indictment.
3 This Court has stated that “a defendant’s waiver of her right
to appeal deserves and, indeed, requires the special attention of
the district court.” Baty, 980 F.2d at 979. “It is up to the
district court to insure that the defendant fully understands her
right to appeal and the consequences of waiving that right.” Id.
See also United States v. Portillo, 18 F.3d 290, 293 (5th Cir.
1994).
It is clear from the plea colloquy that the district court did
not ask Robinson whether he had read the written plea agreement and
understood it. More importantly, the district court did not warn
Robinson that he was waiving his right to appeal. Although the
Government contends that the district court did mention the waiver-
of-appeal provision later during the Rule 11 hearing, the record
shows only that, during a general discussion of the Sentencing
Guidelines, the district court stated: “And even though in your
plea agreement you might have waived the right to appeal, if I
sentence you above the guidelines then you still have the right to
appeal, if I sentence you below the guidelines then the government
has the right to appeal.” It is clear to us that this was part of
the district court’s explanation of the role the sentencing
guidelines play in sentencing. This general statement does not
The Court: All right. Mr. Vaughn [lawyer for Robinson], is this your understanding of the plea agreement? Mr. Vaughn: Yes, sir, Your Honor. The Court: All right. Mr. Robinson, do you understand it? The Defendant: Yes, I do, Your Honor. The Court: And you agreed to it? The Defendant: Yes, I do, Your Honor.
4 satisfy the requirement that the court “insure that the defendant
fully understand her right to the waiver-of-appeal and the
consequences of waiving that right.” Baty, 980 F.2d at 279.
Therefore, we conclude that the record made at the Rule 11 hearing
was not adequate to demonstrate that Robinson knowingly and
voluntarily waived his right to appeal. The waiver is therefore not
effective.2
III.
We now turn to the substance of Robinson’s appeal. Robinson’s
PSI originally calculated the offense level for his possession with
intent to distribute cocaine base offense as 31 and his criminal
history category as I. The applicable guidelines sentencing range
for Robinson would have been 108-135 months imprisonment. However,
the PSI noted that Robinson had two prior state convictions for
delivery of cocaine and determined that Robinson should therefore
be sentenced as a career offender. As a career offender, Robinson
had an offense level of 34, a criminal history category of VI, and
an imprisonment range of 262-327 months. The district court
sentenced Robinson to 262 months imprisonment.
2 Although not binding in this case, this conclusion is consistent with the amendment to Federal Rule of Criminal Procedure 11, which has been adopted by the United States Supreme Court and, in the absence of congressional action, will become effective on December 1, 1999. Amended Rule 11(c) provides that: “Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: . . . (6) the terms of any provision in a plea agreement waiving the right to appeal or to collaterally attack the sentence.”
5 Robinson’s two earlier state offenses of delivery of cocaine
occurred in June 1992. The first delivery occurred on June 17,
1992, when Robinson sold a $50 “rock” of cocaine to undercover
agent Stephen Fuchs. At the time of this first delivery, Robinson
told Fuchs that he would pay Fuchs $50 for every additional
customer that Fuchs referred to Robinson. The second delivery then
occurred on June 24, 1992, when Robinson sold another $50 “rock” of
cocaine to undercover agent Darrell Sanders, who Fuchs referred to
Robinson. Both offenses occurred within a two block area in San
Antonio, Texas. Robinson pled guilty to the two offenses on May
13, 1993, and received identical sentences of 10 years probation.
Both probation terms were terminated early on January 11, 1995.
At sentencing, Robinson objected that he should not be
sentenced as a career offender. He argued that his two prior state
convictions for delivery of cocaine should be treated as one
conviction for purposes of the career offender provision of the
guidelines because they are “related” offenses within the meaning
of the guidelines. The district court found that Robinson’s prior
convictions were not related and sentenced him as a career
We review de novo the district court’s finding that Robinson’s
prior convictions were not related. United States v. Ford, 996
F.2d 83, 85 (5th Cir. 1993); United States v. Garcia, 962 F.2d 479,
481 (5th Cir. 1992). The sentencing guidelines provide for
enhanced punishment for career offenders. The term “career
6 offender” is defined as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. Section 4B1.2(3) defines “two prior felony
convictions” and refers to § 4A1.2, which explains whether a
defendant’s felony convictions are to be counted separately.
Section 4A1.2 provides that “[p]rior sentences imposed in unrelated
cases are to be counted separately. Prior sentences imposed in
related cases are to be treated as one sentence for purposes of §
4A1.1(a), (b), and (c).” U.S.S.G. § 4A1.2(a)(2).
The commentary to § 4A1.2 states that “prior sentences are
considered related if they resulted from offenses that (1) occurred
on the same occasion, (2) were part of a single common scheme or
plan, or (3) were consolidated for trial or sentencing.” U.S.S.G.
§ 4A1.2, comment. (n. 3). Robinson argued in the district court and
to this court on appeal that his prior convictions were part of a
common scheme or plan because they involved the same type of crime,
were committed within days of each other and within the same
vicinity, were investigated by a single agency, and because the
commission of the second crime could not have occurred but for the
commission of the first.
Unfortunately, the guidelines do not define the term “common
scheme or plan.” Nor does the commentary to § 4A1.2 make clear
what type of scheme or plan is needed to make separate offenses
7 related. United States v. Butler, 970 F.2d 1017, 1024 (2d Cir.
1992). However, we start from the bedrock premise that crimes that
are merely similar are not necessarily related crimes. See Ford,
996 F.2d at 86; Garcia, 962 F.2d at 482. See also Butler, 970 F.2d
at 1024 (“the term ‘single common scheme or plan’ is not synonymous
with ‘same course of conduct’”); United States v. Brown, 962 F.2d
560, 564 (7th Cir. 1992) (“a relatedness finding requires more than
mere similarity of crimes”). Additionally, a common criminal
motive or similar modus operandi will not cause separate crimes to
be related, see United States v. Lowe, 930 F.2d 645 (8th Cir.
1991), nor will crimes be related merely because they are committed
to achieve a common goal, such as the support of a drug habit or
lifestyle, see United States v. Chartier, 970 F.2d 1009, 1016 (2d
Cir. 1992).3
It is helpful to consider our decisions in Garcia and Ford in
more detail to understand how we arrived at the conclusion that
crimes of a similar nature are not necessarily related. In Garcia,
the defendant had committed two distinct, separate deliveries of
heroin within a nine-day period and within the same vicinity. This
Court held that although temporally and geographically alike, the
crimes were not part of a common scheme or plan. We stated that
3 Cf. United States v. Houser, 929 F.2d 1385 (9th Cir. 1990) (defendant’s prior convictions are part of a single common scheme or plan if the crimes were of a similar nature, occurred within a short period of time, were the result of a single investigation, and were charged separately only because they had occurred in different jurisdictions).
8 the defendant’s argument “‘would lead to the illogical result that
a defendant who is repeatedly convicted of the same offense on
different occasions could never be considered a career offender
under the guidelines.’” Garcia, 962 F.2d at 482 (quoting United
States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992)).
Similarly, in Ford, this Court, relying on Garcia, held that
the defendant’s four prior state methamphetamine delivery
convictions were not part of a common scheme or plan. All four of
the charges arose from sales to the same undercover officer during
a six-day period; two of the sales occurring on the same date and
at the same motel. The Court found that “each sale was a separate
transaction, separated by hours, if not days. The fact that the
buyer was the same did not make the sales ‘related’ any more than
if Ford made four separate trips to the same H.E.B. in one week to
buy groceries--there was no common scheme or plan, simply
convenience and experience.” Ford, 996 F.2d at 85.
It is clear from Garcia and Ford that the term “common scheme
or plan” must mean something more than repeated convictions for the
same criminal offense. Indeed, we agree with the Seventh Circuit’s
statement in United States v. Ali, 951 F.2d 827 (7th Cir. 1992),
that the words “scheme” and “plan” are “words of intention,
implying that the [prior offenses] have been jointly planned, or at
least that it have been evident that the commission of one would
entail the commission of the other as well.” Id. at 828.
However, “[a] crime merely suggested by or arising out of the
9 commission of a previous crime is not . . . related to the earlier
crime in the special sense of being part of a common scheme or
plan.” Id.
In the present case, Robinson’s two prior convictions are more
than merely repeated transactions, temporally and geographically
alike. Although the two crimes occurred only seven days apart and
within the same vicinity, they contain a factual nexus not present
in Garcia and Ford. The situation in the present case is similar
to the hypothetical scenario described in Ali, where the prior
crimes are “jointly planned” or where the “commission of one crime
entailed the commission of the other.” Id. Specifically, Robinson
planned the commission of the second crime during the course of the
first crime: while selling the “rock” of cocaine to Agent Fuchs,
Robinson told Fuchs that he would pay him $50 if Fuchs would refer
other customers to Robinson. Robinson intended or planned, at the
time he committed the first offense, to sell drugs to other
customers Agent Fuchs might refer to him. The second offense was
not a spur of the moment occurrence, see United States v. Woods,
976 F.2d 1096, 1099 (7th Cir. 1992), but rather an action proposed
and planned at the time of the first offense. Additionally, the
second offense could not have occurred but for the first offense--
the commission of the second offense therefore necessarily entailed
the commission of the first offense. In other words, Robinson
could not have made the second delivery of cocaine to Agent Sanders
had he not sold the first “rock” to Agent Fuchs who then referred
10 Sanders to Robinson.
In light of the fact that Robinson jointly planned the two
deliveries of cocaine, we conclude that Robinson’s two prior state
convictions are related as being part of a common scheme or plan
and should be treated as one conviction. Therefore, the district
court erred in sentencing Robinson as a career offender.
Accordingly, we vacate Robinson’s sentence and remand for
resentencing.
IV.
Because the record does not reflect that Robinson knowingly
and voluntarily waived his right to appeal, that waiver is
ineffective. We also conclude that the district court erred in
sentencing Robinson as a career offender. Therefore, we vacate
Robinson’s sentence and remand for resentencing.
VACATED and REMANDED.