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Criminal Practice — No Resentencing for Change in Law

By: Deborah Elkins//November 19, 2014

Criminal Practice — No Resentencing for Change in Law

By: Deborah Elkins//November 19, 2014

U.S. v. Archie (Lawyers Weekly No. 001-192-14, 17 pp.) (Agee, J.) No. 13-1459, Nov. 17, 2014; USDC at Wilmington, N.C. (Boyle, J.) 4th Cir.

Holding: Although defendant, who pleaded guilty to armed robbery of a Family Dollar store, may have received a different sentence under a change in the law on charging “brandishing,” he waived his appeal rights with his guilty plea, and the 4th Circuit upholds his conviction and sentence, including his mandatory minimum sentence under the Armed Career Criminal Act.

Four months after defendant’s sentencing, the Supreme Court decided Alleyne v. U.S., 133 S. Ct. 2151 (2013), holding that any fact that increases the mandatory minimum is an “element” of a crime that must be submitted to the jury and found beyond a reasonable doubt.

On appeal, defendant argues the district court violated his Sixth Amendment rights under Alleyne when it raised the statutory minimum sentence for his firearm conviction based on a judicial finding of brandishing.

Where, as here, the government seeks enforcement of a waiver of appeal rights and there is no claim that the government breached its obligations under the plea agreement, the waiver will be enforced to preclude appeal of a specific issue if the record shows the waiver is valid and the issue being appealed is within the scope of the waiver. Here, defendant’s sole challenge is that his Alleyne claim falls outside the scope of the appeal waiver. It does not.

At the time of defendant’s sentencing, Supreme Court precedent in Harris v. U.S., 536 U.S. 545 (2002), dictated that factors triggering mandatory minimum sentences need not be alleged in the indictment, submitted to the jury or proved beyond a reasonable doubt. The district court correctly applied the law under Harris by enhancing defendant’s minimum sentence based on its finding that defendant had brandished a firearm. Although Alleyne later overruled Harris after defendant’s sentencing hearing, that post-sentencing change in the law does not void defendant’s appeal waiver.

We have never permitted a criminal defendant to avoid a valid and applicable appeal waiver by claiming error based on a subsequent change in the law. Defendants cannot knowingly and voluntarily enter an appeal waiver, receive a sentence that fully complies with the law applicable at the time of sentencing, and then, when that law later changes, argue that the issue falls outside the binding scope of the waiver. Notwithstanding the government’s concession during oral argument that defendant’s sentence would now be different under Alleyne, we deny his claim because it falls within the scope of the valid appeal waiver.

Defendant also contends the government presented insufficient evidence to sustain his career offender designation under the Armed Career Criminal Act.

The presentence report filed in the district court identified three ACCA qualifying convictions: a 1977 third-degree robbery conviction from New York, a 1983 attempted burglary conviction from New York and a 1994 assault conviction from North Carolina. Defendant challenges whether the government presented sufficient evidence for the district court to find that the third-degree robbery conviction in fact exists.

In siding with the government and finding that defendant was convicted of the New York third-degree robbery, the district court relied on four documents: a computerized print-out from the New York Department of Corrections; a Certificate of Disposition from the clerk of the Supreme Court of the State of New York, Kings County; a Report of Investigation from the Bureau of Alcohol, Tobacco, Firearms and Explosives; and a computerized form from the New York Supreme Court Criminal Term Correspondence Unit. The first, second and fourth documents each provide consistent accounts of defendant’s conviction for third-degree robbery, whereas the third document provides a conflicting conviction date.

Here, the district court weighed the evidence and reasonably found that the same named defendant was convicted of third-degree robbery in 1977 in Kings County, New York based upon the information in all the underlying documents, the conviction date listed in the second document, the consistent incarceration date in the first document and the uniform docket numbers. We see no clear error in this conclusion.

Judgment affirmed.

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