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

10-17-2005

USA v. Chica Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3026

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 04-3026 ____________

UNITED STATES OF AMERICA

v.

ARLEY DEJESUS CHICA, a/k/a EL TIO, a/k/a HECTOR CHAVEZ, a/k/a CUCHO, a/k/a ARTURO SANCHEZ-GONSALEZ, a/k/a ANDREAS VILLALOBOS FLORES

Arley DeJesus Chica,

Appellant ____________

On Appeal from the United States District Court for the District of Delaware (D.C. No. 02-cr-00021-1) District Judge: Honorable John C. Lifland ____________

Submitted Under Third Circuit LAR 34.1(a) September 22, 2005

Before: ROTH, McKEE and FISHER, Circuit Judges.

(Filed: October 17, 2005) ____________

OPINION OF THE COURT ____________ FISHER, Circuit Judge.

Arley DeJesus Chica (“Chica”) appeals from the District Court’s imposition of a

135 month sentence. Chica argues that the District Court erred in imposing sentence by

making impermissible factual findings in violation of United States v. Booker, 543

U.S. - -,

(2005). Because we find that Chica knowingly and voluntarily

waived his right to appeal his sentence pursuant to a valid guilty plea agreement, we will

dismiss the appeal and summarily affirm the judgment of conviction of the District Court.

I.

As we write solely for the parties, and the facts are known to them, we will discuss

only those facts pertinent to our conclusion. On January 22, 2003, the Government

charged Chica in a superseding indictment with three counts relating to federal narcotics

offenses. On June 30, 2003, Chica pled guilty to count one of the superseding indictment

– conspiracy to distribute and possess with the intent to distribute more than five

kilograms of cocaine, in violation of

– pursuant to a written guilty plea

agreement with the Government.1 A provision in that plea agreement provided that Chica

1 Count two charged Chica with distribution and possession with the intent to distribute more than 5 kilograms of cocaine on or about October 2001, in violation of

(a)(1), (b)(1)(A) and

. Count three charged Chica with distribution and possession with the intent to distribute 5 kilograms of cocaine on or about December 2001, in violation of

(a)(1), (b)(1)(A) and

. In accordance with the plea agreement, the District Court granted the Government’s motion to dismiss both counts at the time of sentencing.

2 voluntarily waived “the right to file any appeal . . . if the total offense level determined by

the court is equal to or greater than 35.”

During the change of plea hearing, Chica told the District Court that the written

plea agreement constituted the scope of his agreement with the Government. App. at 26.

The District Court then specifically addressed the waiver of appeal stipulation in the

written plea agreement:

THE COURT: Does the plea agreement and schedule A set forth your agreement on the issue of appeal and collaterally attacking a sentence?

CHICA: Yes.

THE COURT: Looking at the stipulations that address the waiver, do they provide that if your total offense level is found to be equal to or less than 35, then you have agreed not to file an appeal or collaterally attack, excuse me, or collateral attack that challenges your sentence?

CHICA: Yes.

THE COURT: You understand and agree that your right to appeal or attack your sentence is limited by this provision?

CHICA: Yes.

. The District Court subsequently concluded that Chica’s plea was made

knowingly and voluntarily, and thus accepted his guilty plea as to count one of the

superseding indictment.

After the probation office prepared a presentence investigation report, the District

Court conducted a sentencing hearing on July 1, 2004. At the hearing, the District Court

3 declined to impose an upward adjustment of two levels for Chica’s managerial role in the

offense on the basis of the United States Supreme Court’s recent decision in Blakely v.

Washington,

(2004). In addition, the District Court granted the

Government’s motion for a downward departure pursuant to United States Sentencing

Guidelines § 5k1.1 and

(e) and decided to depart from Chica’s total

offense level of 35 by five levels. The District Court, however, miscalculated Chica’s

amended guideline level to be an offense level of 32 and sentenced him in the middle of

that range to a term of imprisonment of 150 months. Upon being alerted to the

mathematical error, the court determined the correct amended guideline level after the

downward departure to be an offense level of 30. Thereafter, the District Court sentenced

Chica at the top of that range to a term of imprisonment of 135 months.2

II.

Despite the appellate waiver provision contained in his guilty plea agreement,

Chica filed an appeal to this Court asserting that the District Court made impermissible

factual determinations in violation of the United States Supreme Court’s decisions in

Blakely and Booker. We have appellate jurisdiction over Chica’s appeal from a final

judgement of conviction of the District Court pursuant to

. We apply a

2 Based upon an offense level of 30 and a criminal history category of II, Chica’s guideline sentencing range was 135-168 months. See U.S. S ENTENCING G UIDELINES M ANUAL ch. 5, pt. A. The District Court further imposed a term of supervised release of five years.

4 de novo standard of review when determining the validity of a guilty plea agreement

containing a waiver of appellate rights. United States v. Khattak,

(3d

Cir. 2001).

III.

In Khattak, this Court held that a criminal defendant’s knowing and voluntary

waiver of appellate rights in a guilty plea agreement is valid, unless such an agreement

works a “miscarriage of justice.”

. There, Khattak signed a guilty plea

agreement which provided, in part, that he waived his right to appeal his sentence if the

District Court fixed his offense level at an offense level of 31 or less. The District Court

subsequently fixed Khattak’s offense level at 29 – two levels below the appellate

threshold set forth in the plea agreement. Khattak appealed his sentence and argued that

the appellate waiver provision was void as contrary to public policy. We disagreed,

noting that there was not a material distinction between the well-recognized ability of

criminal defendants to knowingly and voluntarily waive fundamental Constitutional

rights, and their ability to knowingly and voluntarily waive appellate rights.

.

As a result, we concluded that Khattak’s appellate waiver was valid and did not

contravene public policy because the agreement did not work a “miscarriage of justice.”

.

Any argument that our holding in Khattak was disturbed by the United States

Supreme Court’s decision in Booker was foreclosed by our decision in United States v.

5 Lockett,

(3d Cir. 2005), in which we held that a criminal defendant

who executed an appellate waiver as part of his guilty plea agreement was not entitled to

resentencing in the wake of Booker. In Lockett, the defendant voluntarily waived his

appellate rights in connection with a signed guilty plea agreement. After the District

Court imposed Lockett’s sentence, the Supreme Court issued its decision in Booker. On

appeal, Lockett argued that his sentence was inconsistent with Booker and urged the

Court to vacate his sentence notwithstanding the appellate waiver provision in his guilty

plea agreement. We determined that Lockett was not entitled to be resentenced as a result

of Booker, noting that “[t]he possibility of a favorable change in the law occurring after a

plea agreement is merely one of the risks that accompanies a guilty plea.”

. See

United States v. Sahlin,

(1st Cir. 2005); see also United States v. Bradley,

(6th Cir. 2005). As a result, we dismissed Lockett’s appeal on the basis that

it was inconsistent with the appellate waiver in his plea agreement.

A similar result is mandated in this case. Chica expressly agreed to waive his

appellate rights in the event that the District Court determined his applicable guideline

range to be an offense level of 35 or lower. After declining to apply an upward

adjustment and imposing a downward departure of five levels, the District Court

concluded that Chica had an offense level of 30. That offense level was below the

threshold appellate level set forth in the plea agreement. In accordance with our decision

6 in Lockett, Chica is not entitled to be resentenced because he waived his right to appeal

his sentence under these circumstances.3

For these reasons, we will summarily affirm the judgment of conviction of the

District Court and dismiss Chica’s appeal as inconsistent with the appellate waiver in his

guilty plea agreement.4

3 As a result of our conclusion, we need not decide whether, in the absence of an appellate waiver in the guilty plea agreement, Chica’s sentence should be vacated under Booker. 4 In addition, the motions filed by: (1) the Government for leave to be excused from filing a brief, and (2) Chica for leave to file a supplemental brief and to withdraw appeal for return of property are hereby granted with filing as of the date of this opinion.

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