                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2005

USA v. Adams
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3127




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                                               NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 04-3127


           UNITED STATES OF AMERICA

                          v.

                 DARRYL ADAMS,
                           Appellant




APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                  D.C. Crim. 01-cr-00564
      District Judge: The Honorable Robert F. Kelly




       Submitted Under Third Circuit LAR 34.1(a)
                  September 16, 2005




 Before: SLOVITER, BARRY, and SMITH, Circuit Judges




           (Opinion Filed: October 13, 2005)


                      OPINION
BARRY, Circuit Judge

       Darryl Adams asks us to vacate his 100-month sentence for five counts of bank

robbery and remand his case for re-sentencing under United States v. Booker, 125 S. Ct.

738 (2005). First, however, we must determine whether Adams’ decision to waive his

right to appeal, absent a sentence that, as relevant here, “exceeds the statutory maximum,”

prevents us from doing so. Because we find that Adams’ waiver was valid and

enforceable, we lack jurisdiction and will dismiss the appeal.

                                              I.

       From July 19 through August 8, 2001, Adams entered five banks in southeastern

Pennsylvania, ordered employees and patrons to get on the floor, and took money from

the cash drawers. Adams stole a total of approximately $61,833 before he was arrested.

On September 18, 2001, a grand jury indicted Adams on five counts of bank robbery, in

violation of 18 U.S.C. § 2113(a).

       On November 8, 2002, pursuant to a plea agreement, Adams entered a plea of

guilty to all five counts. In the plea agreement, Adams acknowledged that under §

2113(a) the District Court could sentence him to a “statutory maximum” of 20 years in

prison on each count, up to a total of 100 years. Additionally, Adams and the government

entered into certain stipulations. First, in the stipulation relevant here, Adams agreed to

be classified as a “career offender” for sentencing purposes under section 4B1.1(C) of the

United States Sentencing Guidelines (“Guidelines”) due to his two previous armed



                                              2
robbery convictions in 1983 and 1985. The career offender stipulation resulted in a base

offense level of 32 and a criminal history category of VI. Second, it was stipulated that

Adams accepted responsibility for his offenses, qualifying him for a two-level reduction

in his offense level under Guidelines section 3E1.1(a), and for an additional one-level

reduction under section 3E1.1(b) because he informed the government of his intent to

plead guilty in a timely manner. In return for these stipulations, Adams waived his right to

appeal and to collaterally attack his conviction or his sentence unless, inter alia, “the

defendant’s sentence exceeds the statutory maximum.” (App. 22a.)

       At Adams’ change-of-plea hearing, the District Court stated that the “total

maximum possible sentence for the five counts of bank robbery would be 100 years in

prison.” When asked, “do you understand that?” Adams replied, “Yes.” (App. 32a.)

Additionally, the government orally restated the terms of Adams’ plea agreement,

including his agreement to be classified as a career offender under Guidelines section

4B1.1(c), and his agreement to waive his right to appeal absent a sentence that exceeds

the statutory maximum. The Court then explained to Adams the significance of his waiver

of appeal, and Adams and his counsel indicated that they were satisfied with the

agreement. After finding that there was a factual basis for the plea and that Adams’ prior

convictions supported his designation as a career offender, the Court determined that

Adams “understands his rights and [is] willing voluntarily to give up those rights,” and

accepted his guilty plea. (App. 36a-40a.).



                                              3
       The pre-sentence investigation report calculated Adams’ combined adjusted

offense level as 31. That number was then increased one level due to his career offender

status, and lowered three levels for his acceptance of responsibility, for a total offense

level of 29. His criminal history category of VI, when combined with his offense level of

29, resulted in a range of imprisonment of 151 to 188 months.

       On June 24, 2004, the decision in Blakely v. Washington, 542 U.S. 296 (2004),

was announced. At Adams’ sentencing hearing just three weeks later, he objected, in

light of Blakely, to any enhancements to his sentence based upon his career offender

status. Despite his stipulation that he was, in fact, a career offender, Adams argued that,

under Blakely, his Sixth Amendment right to a jury trial required that facts “legally

essential to his sentence, be presented to a grand jury” and charged in the indictment.

(App. 45a) Because the two prior crimes which served as the basis for his career offender

status were not charged in the indictment, the argument went, they could not be

considered for purposes of sentencing. The District Court disagreed, finding that Adams’

stipulated status as a career offender was not affected by Blakely. A sentence of 100-

months’ imprisonment and three-years supervised release was imposed.1




   1
    The District Court granted the government’s motion under Guidelines section 5K1.1,
resulting in a sentence below the guideline range.

                                              4
                                             II.

       Adams asks us to remand for re-sentencing in light of United States v. Booker, 125

S. Ct. 738 (2005). However, because questions of subject matter jurisdiction must be

considered at the outset, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95

(1998), and because if a defendant “knowingly and voluntarily waive[s] his right to

appeal, the waiver effectively deprives us of jurisdiction,” United States v. Khattak, 273

F.3d 557, 562 (3d Cir. 2001), we must first consider the effect of Adams’ waiver of

appeal.

                                             III.

       Adams does not dispute that he waived his right to appeal. He invokes, however,

an exception to that waiver for claims that “the defendant’s sentence exceeds the statutory

maximum,” arguing that his 100-month sentence exceeds, not the 20-year statutory

maximum for bank robbery, but rather the definition of “statutory maximum” used by the

Supreme Court in Blakely and Booker, i.e., the “maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

Booker, 125 S. Ct. at 749 (quoting Blakely, 124 S. Ct. at 2537) (emphasis added).

Despite the fact that he stipulated to his prior convictions and his resulting career offender

classification, Adams argues that because those convictions were not charged in the

indictment, the 100 months he received exceeded the 51-63 months the Guidelines would




                                              5
have called for absent his career offender classification 2 and, thus, he was sentenced

beyond the statutory maximum.

       On June 26, 2000, the Supreme Court held in Apprendi v. New Jersey, 530 U.S.

466, 490 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” As noted by then-circuit judge, now Chief

Justice Roberts, “[i]n Apprendi, ‘statutory maximum’ had a relatively clear meaning: it

was the maximum penalty allowed by the criminal statute that the defendant was charged

with violating.” United States v. West, 392, F.3d 450, 459 (D.C. Cir. 2004) (citing

Apprendi, 530 U.S. at 468-69)). This definition of “statutory maximum” is the phrase’s

usual and ordinary meaning. See, e.g., United States v. Lee, 359 F.3d 194, 209-10 (3d




   2
     Given our disposition of this case, we do not reach the merits of Adams’ Blakely-
Booker argument. Were we to do so, however, Adams would not prevail. Booker held
that “any fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
125 S. Ct. at 756 (emphases added). Even aside from the fact that Adams admitted to his
prior convictions and the facts underlying those convictions, thus negating the need for
those matters to be “proved to a jury beyond a reasonable doubt,” the fact of a prior
conviction need not be charged in an indictment even post-Blakely and Booker. Id.;
Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998) (holding that recidivism is
not an element of an offense as it goes to punishment only); United States v. Ordaz, 398
F.3d 236, 241 (3d Cir. 2005) (“The holding in Almendarez-Torres remains binding law,
and nothing in Blakely or Booker holds otherwise.”). Adams concedes the binding effect
of Almendarez-Torres.

                                              6
Cir. 2004) (contrasting the statutorily authorized maximum sentence for a crime with the

guideline range applicable to a particular defendant who committed that crime).

       Subsequently, on November 8, 2002, Adams pleaded guilty, waiving his right to

appeal except, as relevant here, if his sentence exceeded the statutory maximum. The

District Court explicitly informed Adams that he faced a “maximum possible penalty

under the statute” of 100 years in prison. (App. 32a.) Adams said he understood, and did

not suggest that “statutory maximum” meant only 51-63 months.

       On June 24, 2004, the Supreme Court decided Blakely, which applied Apprendi to

the State of Washington’s sentencing guidelines and clarified that “the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on

the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely,

124 S. Ct. at 2537. Less than one month later, on July 16, 2004, the District Court

sentenced Adams to 100 months in prison, rejecting his Blakely objection.

       This time line demonstrates that the Blakely definition of “statutory maximum” is

not the one Adams and the government had in mind when entering into the plea

agreement over one year and seven months prior to Blakely. Indeed, at the time of the

plea agreement, our case law made clear that an Apprendi claim only existed if, based on

facts found by the sentencing judge by a preponderance of the evidence, the defendant

was sentenced beyond the maximum prescribed by statute. See e.g., United States v.

Johnson, 302 F.3d 139, 155, 155 n.14 (3d Cir. 2002) (finding Apprendi to be “irrelevant”



                                              7
where the district court sentenced defendant to less than the maximum permitted by the

statute violated); United States v. Sanches-Gonzalez, 294 F.3d 563, 565 (3d Cir. 2002)

(rejecting defendant’s Apprendi claim because he “did not receive a sentence ‘beyond the

prescribed statutory maximum’”). Adams himself acknowledges as much in his brief.

       It was not until Blakely that “statutory maximum” was given the meaning Adams

seeks to take advantage of now, and even then was only so defined “for Apprendi

purposes,” not to alter the term’s plain meaning in the plea agreement context. As

explained by the Court of Appeals for the Eleventh Circuit, Blakely and Booker’s use of

“statutory maximum” in explaining Apprendi’s holding was intended to

       “describe the parameters of the rule announced in those decisions, a rule
       that had nothing to do with the scope of appeal waivers. The term was
       defined in a specialized, which is to say a non-natural, sense. It was defined
       that way not only for semantic convenience but also in order to justify and
       explain the holdings the Court entered in those decisions. Everyone knows
       that a judge must not impose a sentence in excess of the maximum that is
       statutorily specified for the crime. By labeling a sentence that the judge
       may not impose under the Apprendi/Booker doctrine as one in excess of the
       ‘statutory maximum,’ the Court may have sought to call into play that well-
       known principle of law.”

United States v. Rubbo, 396 F.3 1330, 1334 (11th Cir. 2005) (citations omitted).

       We find that the exception to Adams’ waiver of appeal for a sentence in excess of

the statutory maximum only applies to a sentence exceeding the maximum punishment

prescribed by Congress in the criminal statute violated, 18 U.S.C. § 2113(a), and not the




                                             8
“specialized,” “non-natural” definition of “statutory maximum” in Blakely and Booker.3

Because Adams’ sentence of 100 months for five counts of bank robbery does not exceed

the “statutory maximum” of 20 years per count, the “statutory maximum” exception does

not save him from his waiver of appeal.

       Adams argues in the alternative that regardless of the “statutory maximum”

exception, his waiver of appeal was invalid because “it was unknowingly and

involuntarily entered into with respect to potential Blakely claims,” given that Blakely had

not yet been decided. (Appellant’s Br. at 12, 14 n.4.) We reject this argument as well.

       “[W]aivers of appeals are generally permissible if entered into knowingly and

voluntarily, unless they work a miscarriage of justice.” Khattak, 273 F.3d at 558. Neither

a plea agreement nor a waiver of appeal is rendered unknowing or involuntary simply

because a later court decision or statute expands a right waived in that agreement. United

States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005) (citing Brady v. United States, 397




   3
     Six of our sister courts of appeals have similarly ruled in cases with analogous or
identical facts. See United States v. Blick, 408 F.3d 162, 169 n.7, 170 (4th Cir. 2005)
(finding that defendant’s post-Apprendi, pre-Blakely appeal waiver exception for a
sentence in excess of the “statutory maximum” did not contemplate Blakely-based
challenges to the Guidelines); United States v. Bond, 414 F.3d 542, 545-46 (5th Cir.
2005) (same); United States v. Luebbert, 411 F.3d 602, 603 (6th Cir. 2005) (same);
United States v. Rubbo, 396 F.3d 1330, 1333-35 (11th Cir. 2005) (same); United States v.
West, 392 F.3d 450, 460 (D.C. Cir. 2004) (same); United States v. Green, 405 F.3d 1180,
1193-94 (10th Cir. 2005) (following Rubbo and West in interpreting “statutory maximum”
in a post-Apprendi, pre-Blakely case).

                                             9
U.S. 742, 757 (1970)). “A valid plea agreement, after all, requires knowledge of existing

rights, not clairvoyance.” Lockett, 406 F.3d at 213 (emphasis added).

       Adams voluntarily pled guilty and waived his right to appeal his sentence with full

knowledge of his existing rights and in exchange for certain benefits. As with any

contract, both sides assumed a risk in the plea agreement that later events would affect the

attractiveness of the bargain. To allow a defendant to void a plea of guilty or a waiver of

appeal whenever subsequent changes in the law might help his or her case (and we do not

suggest that Blakely and Booker would), would undermine the interest in finality of

judgments and sentences, and would “prolong litigation, affording defendants the benefits

of their agreements while shielding them from their self-imposed burdens.” Khattak, 273

F.3d at 561. Adams’ failure to foresee Blakely and Booker does not render his plea or his

waiver involuntary or unknowing and enforcing the waiver would surely not result in a

miscarriage of justice. We hold, as we held in Lockett, that “where a criminal defendant

has voluntarily and knowingly entered into a plea agreement in which he or she waives

the right to appeal, the defendant is not entitled to resentencing in light of Booker.”

Lockett, 406 F.3d at 214.

                                             IV.

       Because Adams has waived his right to appeal, the appeal will be dismissed for

lack of jurisdiction.




                                             10
