Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
JUL 23 1999
PATRICK FISHER
TENTH CIRCUIT
Clerk
No. 98-8059
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
*
Defendant appeals his enhanced sentence, claiming that the conviction for
intimidating a witness does not constitute a violent felony under the test set forth
in Taylor v. United States , 495 U.S. 575 (1990). We take jurisdiction under 18
U.S.C. 3742 and 28 U.S.C. 1291 and affirm.
As an initial matter, the government contends that defendant waived his
right to appeal his sentence when he signed his plea agreement. The written plea
agreement states: Defendant agrees to waive his right to appeal the sentence he
receives as a result of this Plea Agreement. However, if the United States appeals
the Defendants sentence pursuant to 18 U.S.C. 3742(B), the Defendant is
released from his waiver. R., Vol. 1, Doc. 47 at 7. A defendants knowing and
voluntary waiver of the statutory right to appeal his sentence is generally
enforceable. United States v. Hernandez , 134 F.3d 1435, 1437 (10th Cir. 1998).
However, defendant claims the waiver is unenforceable because the district judge
stated at the change of plea hearing that he was accepting the plea but rejecting
the part of the agreement that waived defendants right to appeal. For purposes of
this case, we assume, without deciding the issue, that defendant could properly
appeal his sentence.
Defendant argues that his conviction for intimidating a witness does not
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meet the violent felony test for 924(e) sentence enhancement purposes.
conclusion that the witness intimidation conviction at issue is not a violent felony.
We review the interpretation and application of sentence enhancements imposed
under 18 U.S.C. 924(e) de novo.
1340 (10th Cir. 1997),
we may affirm the sentence for reasons other than those relied upon by the
district court, provided they are supported by the record.
106 F.3d 936, 941 (10th Cir.),
cert. denied ,__U.S.__, 118 S. Ct. 1334 (1998), we stated that escape always
constitutes a violent felony under 924(e)(2)(B). The escape conviction was
properly in the record. Thus, regardless of the analysis concerning the witness
intimidation conviction, defendant committed three prior violent felonies and was
Defendant did not challenge the use of the felony menacing and aggravated
assault convictions.
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I respectfully dissent from the majoritys approach and its result in this
case.
As a threshold issue, I do not think this court can so easily avoid the
question of whether Defendant has the right to appeal when the issue is squarely
presented to us. The Government argues that this court should dismiss this appeal
because Defendant waived his right to appeal the sentence when he entered into
the plea agreement. To assess whether Defendant has the right to appeal, I would
examine the Rule 11 change of plea hearing in which the district court accepted
Defendants guilty plea. At that hearing, the court clearly stated several times
that it rejected the portion of the plea agreement requiring Defendant to waive his
right of appeal.
First, after a colloquy between the parties and the court in which
Defendant admitted the role of alcohol in his criminal history and in which he
clarified that, at sentencing, he would contest whether his prior convictions
qualified under the Armed Career Criminals Act, the district court advised
Defendant that he would have the right to appeal his sentence if the court
accepted his change of plea.
Id. at 26-
27. The judge then asked Defendant if he understood that unless your appeal is
successful, youll live with the result of the sentence.
answered, Yes, he understood that consequence.
see id. at 44, the judge accepted the plea, finding that
to these four statements by the court which unequivocally rejected the part of the
plea agreement waiving Defendants right to appeal the sentence and purported to
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It is well established that Rule 11 does not allow a judge to modify a plea
agreement once it has accepted that agreement.
F.3d 1311, 1315 (10th Cir. 1997) (citing Second, Seventh, and Ninth Circuit cases
holding that if a sentencing court accepts a Rule 11(e)(1)(A) or (C) agreement, it
is bound by the agreement and may not modify it);
1535, 1541 (11th Cir.) (stating that acceptance of a defendants plea agreement
[generally] prohibits a district court from modifying that agreement),
on reconsideration on other grounds
modified
United
States v. Skidmore , 998 F.2d 372, 375 (6th Cir. 1993) (emphasizing that district
court is not authorized to modify plea agreement once it has accepted it).
None of
these cases, however, speak to the circumstances of this case. Here, the court did
not modify or attempt to modify the agreement after acceptance but instead
modified the agreement before acceptance, when the court still retained the power
to reject the plea agreement. Additionally, in this case Defendant relies on the
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district courts specific statements refusing to accept the plea with the waiver of
Defendants right to appeal and indicating that it would only accept the plea if
Defendants right of appeal was reinstated. Finally, the Government made no
objection to the courts pre-acceptance modification of the plea agreement. In
light of these distinctions, we must examine whether a defendant may reasonably
rely on a district courts statements rejecting the appeal waiver provision which
are made before the plea is taken and to which the government does not object.
In United States v. Buchanan , 59 F.3d 914, 917-18 (9th Cir. 1995), the
Ninth Circuit concluded that a defendants waiver of his right of appeal was
unenforceable because the district courts oral pronouncements at sentencing
concerning the right to appeal trumped the written plea agreement and because the
government had failed to object to the courts statements.
United States v. Schuman , 127 F.3d 815, 817 (9th Cir. 1997) (noting that where
the government has objected to the district courts rejection of an appeal waiver
provision, the defendant is on notice that he may not have a right to appeal). The
Ninth Circuit further justified its decision on the theory that litigants should be
able to trust and rely upon a district courts statements.
918. However, in United States v. Atterberry , 144 F.3d 1299, 1301 (10th Cir.
1998), this court rejected
appeal . . . do not affect a defendants prior decision to plead guilty and waive
appellate rights. Not only are the facts of
case but also Atterberry s reasoning supports my conclusion that, at the very least,
the courts statements at the plea hearing likely affected Defendants decision to
plead guilty.
Given that the district court first uttered its statements at the change of plea
hearing, before the court accepted Defendants plea, I am persuaded that at least
three of the courts statements were likely to have affected Defendants decision
to plead guilty. In fact, because Defendant was informed of his right of appeal on
three occasions before he actually entered his plea (and again while the court
accepted his plea), he could reasonably believe that he retained the right of
appeal. Consequently, I think it
knowingly and intelligently waive the right or that he believed that the court
restored the right before accepting his guilty plea. My conclusion is further
buttressed by the fact that the Government did not raise a single objection during
the entire plea hearing, nor did it object to any of the four separate instances in
which the court told Defendant that he had the right to appeal.
Because the
This courts statement in Atterberry, 144 F.3d at 1301 n.3, concerning the
governments failure to object does not apply to this case. While the court here made
statements both at the Rule 11 hearing and at sentencing without objection from the
Government, the critical distinction between this case and Atterberry is the Governments
failure to object at the Rule 11 plea hearing. Atterberry and the cases it relied upon did
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not involve statements made by courts at plea hearings but only dealt with statements
made at sentencing hearings. See id.; see also United States v. One Male Juvenile, 117
F.3d 1415, 1997 WL 381955, at **2 (4th Cir. 1997), cert. denied, U.S.
, 118 S. Ct.
1191 (1998).
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charging documents and the police report contained within the presentence report.
Defendant argues that the intimidation conviction does not constitute a violent
felony based on the categorical approach set forth in
U.S. 575 (1990). He contends that his conviction does not properly count towards
enhancement under 924(e) because the statute under which he was convicted,
Colo. Rev. Stat. 18-8-704, is overbroad and does not necessarily require for
conviction the use, attempted use, or threatened use of force or a substantial risk
of violence against a person.
I begin by examining the applicability of
of state law burglary statutes, the Supreme Court in
See
a formal categorical approach, looking only to [the fact of conviction and] the
statutory definitions of the prior offenses, and not to the particular facts
underlying those convictions.
1334, 1341 (10th Cir. 1997),
The purpose of this restricted method was to avoid practical difficulties and the
potential unfairness of a factual approach to each prior conviction.
States v. King , 979 F.2d 801, 802 (10th Cir. 1992) (quoting
United
601). The Court held that if a state statute defines burglary more broadly than the
definition set forth in
Taylor
jury instructions do not exist because the defendant pled guilty, this court has held
that the sentencing court may review the text of the underlying guilty plea to
determine whether the defendant was charged with and admitted conduct which
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Barney ,
In other words, the statute defines the crime of intimidation so that one may
commit it against a person
crime is the use, attempted use, or threatened use of physical force against the
person of another, see 18 U.S.C. 924(e)(2)(B)(i), or that the crime otherwise
involves conduct that presents a serious potential risk of physical injury to
another. Id. 924(e)(2(B)(ii); see also King , 979 F.2d 803-04 (reviewing New
Mexico statutory definitions to hold that conspiracy conviction does not qualify as
violent felony under subsections (i) or (ii));
986 (10th Cir. 1992) (holding that Utah attempted burglary convictions did not
categorically involve conduct presenting serious potential risk of physical harm to
another under subsection (ii)). This means that, under the categorical approach,
Id.
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Thus, Permenter demands that this court follow only the categorical
approach in determining whether the intimidation conviction qualifies under
924(e)(2)(B)(ii).
See King , 979 F.2d at 804 (stating that Tenth Circuit cases
require court to examine only the elements of the crime to determine whether
conviction is violent felony).
necessarily present
United States v. Sherbondy , 865 F.2d 996, 1011 (9th Cir. 1988) (stating that
where a statute is overly broad or inclusive, subsection (ii) is not applicable),
cf. United States v. Parker , 5 F.3d 1322, 1326 (9th Cir. 1993) (refusing to apply
Taylor exception in case involving otherwise clause of 924(e)(2)(B)(ii) and
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strongly noting that Taylor permitted a deviation from the categorical approach
only in burglary cases).
I am now left with the question of whether, under
look to the underlying charging document and guilty plea to determine whether
[the defendant] was charged with and admitted conduct which falls without
question within the ambit of 924(e)(2)(B)(i).
to cases under subsection (i), and no subsequent decision of this court has
answered this thorny issue. If
preclude our review, the Colorado intimidation conviction does not satisfy the
narrow constraints of the
Taylor exception.
Both the charging document and Defendants written guilty plea use the
language of the Colorado statute to describe the crime, i.e., by use of threat and
act of harm or injury to any person or property. Appellees Addendum at 8;
see
id. at 12-13. Thus, the crime as described in these underlying documents does not
categorically require as an element the use, threatened use, or attempted use of
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force against a person. These documents contemplate that force may have been
used, threatened, or attempted against property. Only by examining the conduct
of a separate count in the charging document for the prior conviction can we infer
that the use of threat or act of harm or injury was committed against a person.
Moreover, because we can only draw an inference or an implication from the
charging document and the plea, I cannot say that the use, threatened use, or
attempted use of force against a person was necessarily an element of the
intimidation conviction. Therefore, even if I were to apply the
Taylor exception
and examine the underlying documents in this case, I cannot ascertain whether
Defendant was charged with and admitted conduct which [is] without question
a violent felony under 18 U.S.C. 924(e)(2)(B)(i).
See Barney ,
955 F.2d at 640 (indicating that a sentencing court is prohibited from relying on a
presentence report to determine whether charged and admitted conduct
I am not persuaded by the Seventh Circuits reasoning in United States v. Lowe,
923 F.2d 528, 531 (7th Cir. 1991), overruled in part on other grounds, United States v.
Byerley, 46 F.3d 694, 699 (7th Cir. 1995), because it necessitates that a defendant object
to or dispute the facts of the conviction, thus requiring the court to look beyond the
charging documents and guilty plea.
5
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categorically constitutes a violent felony). This is exactly the type of case-bycase factual probe that
But see
Cook , 26 F.3d at
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