United States v. William H. Hicks

129 F.3d 376, 1997 U.S. App. LEXIS 29773, 1997 WL 663136
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 27, 1997
Docket96-3591
StatusPublished
Cited by30 cases

This text of 129 F.3d 376 (United States v. William H. Hicks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. William H. Hicks, 129 F.3d 376, 1997 U.S. App. LEXIS 29773, 1997 WL 663136 (7th Cir. 1997).

Opinions

' BAUER, Circuit Judge.

William H. Hicks alleges a host of sentencing misdeeds on appeal. However, before we can entertain these allegations, we must first examine Hick’s plea agreement, in which Hicks agreed to waive his right to appeal.

On July 21, 1994, a federal grand jury returned a forty-two count superseding indictment against Hicks, charging him with numerous counts of money laundering, mail fraud, and wire fraud. On March 1, 1996, pursuant to a written plea agreement, Hicks pleaded guilty to -Count' Fifteen, .which charged him with wire fraud, in violation of 18 U.S.C. §§ 1342 and 1343. Hicks also agreed to waive his right to appeal. In exchange, the government agreed to dismiss the remaining counts, to recommend a sentence at the low end of the applicable .guideline range, and to recommend a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.

On May 7, 1996, a Presentenee Report (“PSR”) was filed. Hicks filed objections to the PSR on October 1, 1996. On October 2, 1996, the government filed a response to Hicks’ objections. Included in that response was grand jury testimony. At the sentencing hearing on October 4, 1996, Hicks’ counsel stated that he had not seen the grand jury materials, but the court proceeded without his objection.

The court sentenced Hicks to sixty months imprisonment, three years of supervised release, and a $10,000 fine. In so doing, the district court relied upon the PSR findings, including the portions to which Hicks’ counsel objected. Claiming that Hicks’ post-plea conduct did not evidence an acceptance of responsibility, the government recommended only a two-level reduction, not the three-level reduction promised in the plea agreement. Hicks did not move to withdraw his guilty plea. Finding that -Hicks was a “leader” or “organizer” as. defined in U.S.S.G. § 3B1.1, the district court also enhanced his sentence. Finally, the court denied Hicks’ .motion for a downward departure.

Hicks appeals, arguing primarily that the government breached the plea agreement by only recommending a two-level reduction for acceptance of responsibility. He also contends that the district court erred at sentencing when: (1) it relied upon an ex parte communication; (2) it failed to state reasons for its resolution of disputed factual issues; (3) it enhanced Hicks’ offense level after determining that he was a leader in the offense; and (4) it refused Hicks’ request for a downward departure. The government believes that Hicks waived his right to appeal in his plea agreement. It also contends that it did not breach the plea agreement arid that, in any event, Hicks waived the issue by not raising it at sentencirig.

As a threshold matter, we must decide whether we can hear Hicks’ appeal at all. We will enforce a plea agreement in which the defendant agrees to waive appeal, provided the waiver is knowing and voluntary. See United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.), cert. denied, — U.S. —, 117 S.Ct. 2467, 138 L.Ed.2d 223 (1997); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir.1995). However, we will not enforce the waiver if the district judge relied on impermissible facts in sentencing (for example, the defendant’s race or gender) or if the judge sentenced the defendant in excess of the statutory maximum sentence for the offense(s) committed. Feichtinger, 105 F.3d at 1190.

In this case, the plea agreement provided in relevant part:

The Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the Defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or [378]*378the manner in which that Sentence was determined) on the grounds set forth in Title 18, United States Code, Section 871# or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255.

(emphasis added). Hicks does not argue that he entered into the plea agreement either in ignorance or under duress. He also does not argue that the district court considered impermissible factors in sentencing him or that the court sentenced him in excess of the statutory maximum. Rather, Hicks believes that he can still bring this appeal and that he is entitled to specific performance of the plea agreement because the government breached the plea agreement when it recommended only a two-level reduction for acceptance of responsibility. Specifically, the plea agreement provided:

Defendant and the Government agree that Defendant has voluntarily demonstrated a recognition and affirmative acceptance of personal responsibility for this criminal conduct, and the Government will recommend a reduction of 3 levels, reducing the Offense Level to 25 (from Offense Level 28). See [sic] U.S.S.G. § 3E1.1.

However, Hicks did not bring this breach to the district court’s attention at sentencing, where the district court could have remedied the situation.1 A defendant’s failure to allege the breach of a plea agreement at sentencing waives the matter for appeal. United States v. Walton, 36 F.3d 32, 36 (7th Cir.1994) (citing United States v. Pryor, 957 F.2d 478, 481-82 (7th Cir.1992)); see also United States v. Flores-Sandoval, 94 F.3d 346, 352 (7th Cir.1996) (“Breach of a plea agreement cannot be raised for the first time on direct appeal.”) (citing United States v. D’Iguillont, 979 F.2d 612, 614 (7th Cir.1992), cert. denied, 507 U.S. 1040, 113 S.Ct. 1873, 123 L.Ed.2d 492 (1993)). Because Hicks brings the breach issue for the first time on direct appeal, he has waived it.

We will, however, reverse even on a relinquished ground if the district court committed plain error. United States v. Phillips, 37 F.3d 1210, 1215 (7th Cir.1994). We have stated that “[a] reversal on the basis of plain error can be justified only when the reviewing court is convinced that it is necessary in order to avert an actual miscarriage of justice.” D’Iguillont, 979 F.2d at 614 (citation omitted). That is, to establish plain error, Hicks “must show that but for the breach of the plea agreement his sentence would have been different.” D’Iguillont, 979 F.2d at 614 (citation omitted).

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Bluebook (online)
129 F.3d 376, 1997 U.S. App. LEXIS 29773, 1997 WL 663136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-h-hicks-ca7-1997.