USCA4 Appeal: 23-4190 Doc: 51 Filed: 12/04/2024 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4190

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

STANLEY RAY LUBKIN,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:20−cr−00782−MGL−1)

Argued: November 1, 2024 Decided: December 4, 2024

Before WILKINSON, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Appeal dismissed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Quattlebaum and Judge Heytens joined.

ARGUED: Jeremy A. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Elliott Bishop Daniels, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Suha Najjar, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Jade A.Y. Ford, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Adair F. Boroughs, United States Attorney, Kathleen Stoughton, Appellate Chief, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 23-4190 Doc: 51 Filed: 12/04/2024 Pg: 2 of 16

WILKINSON, Circuit Judge:

Stanley Lubkin pleaded guilty to possessing a firearm as a convicted felon in

violation of

(g), 924(a), and 924(e). In exchange for several concessions

from the government, he signed a plea agreement. That agreement also included a

concession from Lubkin in the form of an appeal waiver. Lubkin agreed to waive his right

to appeal both his conviction and his sentence. The indictment, plea agreement, and plea

colloquy all alerted Lubkin to the possibility that because of his prior convictions, the court

might sentence him as an armed career criminal, which would mean a mandatory minimum

of 15 years and a maximum of life in prison. The district court later sentenced Lubkin as

an armed career criminal to 15 years in prison. Lubkin now appeals his sentence, arguing

that the court erred in finding that he was an armed career criminal. Because this argument

falls within the scope of Lubkin’s valid appeal waiver, we dismiss his appeal.

I.

A.

After a confrontation with police officers in December 2018, Stanley Lubkin was

found in a stolen vehicle with a pistol. A federal grand jury in the District of South Carolina

returned an indictment charging him with three counts. Count 1 charged Lubkin with

possessing a firearm as a convicted felon in violation of

(g)(1), 924(a)(2),

and 924(e). Count 2 charged him with carjacking in violation of

, and

Count 3 with discharging a firearm during a crime of violence in violation of

(c)(1)(A)(iii). J.A. 11–12, 58–59.

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After extensive negotiations between the government and his counsel, Lubkin

signed a plea agreement on July 14, 2022. He agreed to plead guilty to Count 1, the § 922(g)

felon-in-possession charge. The agreement stated that if Lubkin had at least three prior

convictions for a “violent felony” or a “serious drug offense,” he would face a mandatory

minimum sentence of 15 years and a maximum of life in prison under

(e),

the Armed Career Criminal Act (ACCA). Otherwise, the maximum term of imprisonment

would be 10 years under § 924(a)(2).1 The plea agreement had an appeal waiver:

The Defendant is aware that

and

afford every defendant certain rights to contest a conviction and/or sentence. Acknowledging those rights, the Defendant, in exchange for the concessions made by the Government in this Plea Agreement, waives the right to contest either the conviction or the sentence in any direct appeal or other post- conviction action, including any proceedings under

. This waiver does not apply to claims of ineffective assistance of counsel, prosecutorial misconduct, or future changes in the law that affect the Defendant’s sentence.

J.A. 25. Both Lubkin and his counsel signed the plea agreement, affirming that Lubkin did

so “as a matter of [his] free and voluntary choice.” J.A. 19–26, 325.

In exchange for Lubkin’s agreement to plead guilty to Count 1 and to abide by the

appeal waiver, the government made several concessions. First, the government agreed to

drop the remaining charges of carjacking and discharging a firearm. Second, it agreed to

recommend that Lubkin not be prosecuted for his conduct under state law. And third, the

1 For offenses committed after June 2022, Congress increased the maximum sentence for § 922(g) offenses from 10 to 15 years. See

(a)(8).

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government agreed not to pursue an attempted murder cross-reference or a two-level

stolen-firearm enhancement at sentencing. J.A. 21, 24–25.

Lubkin signed a supplemental agreement with the government. It stated that Lubkin

had three prior convictions for manufacturing methamphetamine in violation of South

Carolina law. Lubkin stipulated that these “three convictions were committed on

‘occasions different from one another’ within the meaning of the Armed Career Criminal

Act.” The agreement confirmed that nothing therein “represents a concession that the

enhanced penalty provided by the Armed Career Criminal Act applies, which is a question

reserved for the Court to decide at sentencing.” J.A. 28–29.

B.

On July 19, 2022, Lubkin appeared before the district court to plead guilty to Count

1 under the terms of his plea agreement. The court conducted a plea colloquy pursuant to

Federal Rule of Criminal Procedure 11. The judge first concluded that there were no “issues

of competency.” Lubkin had attended high school through the eleventh grade and had never

been treated for drugs, alcohol, or mental illness. The judge then asked Lubkin a series of

questions to confirm that his plea was knowing and voluntary. Lubkin’s counsel confirmed

that she had reviewed “the charges, the punishment, and his rights” with her client. The

prosecutor summarized the facts underlying Count 1 and the range of penalties, including

the potential 15-year mandatory minimum under the ACCA. The judge inquired whether

Lubkin understood “the nature of this charge against you and the range of potential

punishments you face.” Lubkin said yes. J.A. 35–49.

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The court then had the prosecutor summarize the signed plea agreement. The

prosecutor noted that Lubkin “has agreed to give up [his] appeal rights” subject to “three

narrow exceptions.” The judge confirmed that Lubkin had reviewed the agreement with

his counsel and that he had signed it. As required by Rule 11(b)(1), the judge specifically

“point[ed] out” the “appellate waiver,” which she read aloud and confirmed that Lubkin

understood. The court accepted Lubkin’s guilty plea. J.A. 50–61.

C.

Before Lubkin’s sentencing hearing, the probation office prepared a presentence

report (PSR). The PSR found that Lubkin’s three prior manufacturing methamphetamine

convictions under South Carolina law qualified as predicate “serious drug offenses” under

the ACCA. Because Lubkin had three qualifying predicate offenses, the PSR concluded

that he was an armed career criminal subject to the ACCA’s enhanced penalty. Lubkin

objected. He argued that because South Carolina’s definition of methamphetamine was

categorically broader than the federal definition, his convictions did not qualify as valid

ACCA predicates and he was therefore not an armed career criminal. The government

argued in favor of the PSR’s determination. J.A. 64–65, 150–51, 154.

The district court held a sentencing hearing on March 14, 2023. Lubkin and the

government presented their arguments, and experts on behalf of each party testified. The

court ruled that Lubkin’s three prior manufacturing methamphetamine convictions

qualified as predicate offenses under the ACCA and sentenced him as an armed career

criminal to the mandatory minimum of 15 years in prison. J.A. 191, 312, 336.

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Lubkin appealed his sentence. Because we conclude that Lubkin’s appeal waiver is

valid and his arguments fall within the waiver’s scope, we dismiss the appeal without

addressing the parties’ arguments on the merits.

II.

Lubkin contends that his appeal waiver does not preclude him from challenging his

sentence. His argument, which addresses the merits, proceeds in three steps. One, Lubkin

claims that the district court erred in classifying him as an armed career criminal because

it erroneously concluded that his prior convictions under South Carolina law qualified as

predicate “serious drug offenses” under the ACCA. Two, his 15-year sentence under the

ACCA exceeded the 10-year statutory maximum that should have applied without the

allegedly erroneous ACCA enhancement. Three, his sentence was therefore “illegal,” and

his appeal lies beyond the scope of the waiver. Reply Brief at 3–4. The government argues

that Lubkin’s appeal falls squarely within the scope of his valid appeal waiver and requests

that we dismiss. Response Brief at 10–17.

We review “the validity and effect” of an appeal waiver de novo. United States v.

Thornsbury,

(4th Cir. 2012). “We have consistently held that appellate

waivers in valid plea agreements are enforceable.” United States v. Soloff,

(4th Cir. 2021). Where “there is no claim that the United States breached its obligations

under the plea agreement,” we enforce an appeal waiver if the record shows (1) “that the

waiver is valid” and (2) “that the issue being appealed is within the scope of the waiver.”

United States v. Blick,

(4th Cir. 2005).

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A.

An appeal waiver is valid “if the defendant’s agreement to the waiver was knowing

and intelligent.” Thornsbury,

. We look at the “totality of the

circumstances,” including the clarity of the waiver’s text and “whether the district court

sufficiently explained the waiver” at the defendant’s “plea colloquy.” United States v.

Manigan,

(4th Cir. 2010); see also United States v. General,

(4th Cir. 2002). In “the absence of extraordinary circumstances, a properly

conducted Rule 11 colloquy establishes the validity of the waiver.” United States v. Adams,

(4th Cir. 2016).

All of the customary indicia show that Lubkin’s appeal waiver is valid. First, the

waiver’s text was clear. Paragraph 12 of the plea agreement indicated that by signing the

document, Lubkin “waives his right to contest either the conviction or the sentence in any

direct appeal.” J.A. 25. Lubkin and his counsel voluntarily signed the agreement. J.A. 26.

Next, Lubkin’s plea colloquy addressed the appeal waiver in detail. The court

confirmed that Lubkin was educated and competent and that his attorney had explained to

him both the charges and the punishments. See J.A. 35–37. The court had the government

summarize the plea agreement “paragraph by paragraph,” including the appeal waiver and

its three exceptions. J.A. 50, 52–53. The judge then confirmed that Lubkin had “reviewed

[the] plea agreement” (“Yes, ma’am”); had “been over it” and “discussed it with” his

lawyer (“Yes, ma’am”); had “underst[ood]” the agreement (“Yes, ma’am”); and had signed

it (“Yes, ma’am”). J.A. 53–54. The judge then circled back to the appeal waiver, read it

aloud, and noted its exceptions. At this point, the judge asked Lubkin three times whether

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he understood the terms of his appeal waiver and was “aware of the appellate rights you’re

waiving.” Lubkin responded in the affirmative three times. See J.A. 55–56. Immediately

after this, the judge asked, “Do you still wish to plead guilty?” (“Yes, ma’am”). J.A. 56.

The court then found that Lubkin was “fully competent and capable of entering an informed

plea” and that his plea was “knowing and voluntary.” J.A. 61.

And Lubkin had ample notice that his sentence might include an ACCA

enhancement. Count 1 of the indictment, to which Lubkin pleaded guilty, referred to the

ACCA penalty. See J.A. 11 (citing § 924(e)). The plea agreement explicitly discussed a

potential 15-year mandatory minimum sentence under the ACCA in a section titled “The

penalty for this offense.” J.A. 20. The second agreement that Lubkin signed was relevant

only in the context of an ACCA sentence, and it explicitly noted that whether “the enhanced

penalty provided by the Armed Career Criminal Act applies” was “a question reserved for

the Court to decide at sentencing.” J.A. 29. At the plea colloquy, Lubkin’s counsel said that

she had “explained to Mr. Lubkin” that whether he is an armed career criminal will be a

“sentencing issue.” J.A. 34. And in summarizing the indictment, the prosecutor highlighted

the potential 15-year mandatory minimum under the ACCA if “the Court at sentencing

concludes that he has three prior [predicate] convictions.” J.A. 49. After all this, the judge

asked Lubkin whether he understood “the range of potential punishments you face.” “Yes,

ma’am,” Lubkin responded. J.A. 49. Bound by the appeal waiver, he then pleaded guilty.

The crystal-clear plea agreement and forthright plea colloquy here are consistent

with our cases that have held appeal waivers to be valid. See, e.g., Blick,

;

United States v. Boutcher,

(4th Cir. 2021). Because all signs point to a

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knowing, intelligent, and voluntary appeal waiver, we conclude that Lubkin’s appeal

waiver is valid and now consider its scope.

B.

To determine the scope of an appeal waiver, we “look to the plain language of the

agreement, construing it in the ordinary sense.” Boutcher,

. We also

consider a few “narrow exceptions” to our rule that an appeal waiver is enforceable as to

issues within its scope. United States v. Taylor-Sanders,

(4th Cir. 2023).

We conclude that Lubkin’s argument that the district court legally erred during sentencing

falls within the scope of his appeal waiver and our circuit’s limited exceptions do not apply.

We start with the text of the waiver. As discussed, Lubkin had repeated notice across

the indictment, plea agreement, supplemental agreement, and plea colloquy that his

sentence could include an ACCA enhancement. Lubkin then waived his right to

“contest . . . the sentence in any direct appeal.” J.A. 25 (emphasis added). Now Lubkin

contests his sentence in a direct appeal. Unless some exception applies, the waiver clearly

forecloses this appeal.

The waiver itself identifies three limited exceptions. Lubkin does not argue that any

of them applies, and it is clear that none does. There is no claim of ineffective assistance

of counsel or prosecutorial misconduct. And there have been no changes to the law brought

to our attention that “affect” Lubkin’s sentence.

Because he cannot identify a textual hook in the waiver that allows his appeal,

Lubkin invokes our exception in United States v. Marin,

(4th Cir. 1992). A

defendant may always contest a “sentence imposed in excess of the maximum penalty

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provided by statute.”

. Because a sentencing court does “not have the statutory

authority to impose” a sentence exceeding the statutory maximum, United States v.

Cornette,

(4th Cir. 2019), such a sentence is “illegal” and therefore

appealable notwithstanding a waiver, Thornsbury,

. Lubkin argues that his

sentence exceeds the statutory maximum and is “illegal.”2

On its face, this exception does not apply because Lubkin’s sentence plainly does

not exceed the statutory maximum. The district court sentenced Lubkin to 15 years under

the ACCA. The ACCA provided for a mandatory minimum of 15 years and a maximum

of life. See

(e)(1). Far from exceeding the statutory maximum, the district

court gave Lubkin the lowest possible sentence it was authorized to give. So Marin alone

cannot save Lubkin.

But as discussed, Lubkin offers a multi-step argument that his 15-year sentence did

in fact exceed the statutory maximum and was therefore “illegal.” He first claims that the

trial court erred in concluding that he was an armed career criminal based on his prior drug

convictions and therefore erred in enhancing his sentence under the ACCA. Lubkin then

contends that his allegedly erroneous 15-year sentence exceeded the unenhanced 10-year

statutory maximum that, in Lubkin’s view, should have applied to his conviction. He thus

2 Lubkin does not invoke any of our other exceptions for circumventing an appeal waiver. Those apply when a sentence was “based on a constitutionally impermissible factor such as race,” Marin,

; when a sentence was imposed after proceedings conducted in violation of the Sixth Amendment, United States v. Attar,

, 732– 33 (4th Cir. 1994); and when enforcing the waiver “would result in a miscarriage of justice,” such as where there is a “cognizable claim of actual innocence,” Adams,

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asks us to ignore his appeal waiver, evaluate his sentence on the merits, and then compare

his allegedly erroneous sentence to the statutory maximum of the statute that would have

applied had the court not improperly relied on the ACCA. To support his argument that an

erroneously enhanced ACCA sentence is “illegal” and bypasses a valid appeal waiver

under the Marin exception, Lubkin directs us to our decision in United States v. Cornette.

Lubkin misreads Cornette. The Cornette court did not look into the merits of

Cornette’s specific case and did not grapple with whether his prior convictions qualified as

“violent felonies” under the ACCA. Instead, Cornette was decided in “the unique context”

of the Supreme Court entirely invalidating ACCA’s residual clause as unconstitutional.

Cornette, 932 F.3d at 206–07 (citing Johnson v. United States,

(2015)). The

district court had relied on that unconstitutional provision to sentence Cornette. Because

the provision was unconstitutional, “all sentences rendered under the residual clause

became unconstitutional.” Id. at 209 (emphasis added). Therefore, “every person in the

class of persons sentenced under the residual clause” was serving an “illegal” sentence. Id.

at 210. The statutory provision that had authorized Cornette’s sentence simply vanished.

And with it evaporated the district court’s authority to impose the sentence that it did. See

id. In other words, ACCA’s residual clause had actually authorized no sentence at all. And

because of that, Cornette’s sentence “was imposed ‘in excess of the maximum penalty

provided by’ ACCA” itself. Id. at 209 (quoting Marin,

).

Cornette did not make the comparison Lubkin requests here. It did not compare

Cornette’s 18-year sentence to the statutory maximum of 10 years that would have applied

to his felon-in-possession conviction without an ACCA enhancement. Cornette only

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narrowly held that when an ACCA provision does not authorize a penalty for anybody, the

impossible sentence imposed under that provision exceeds the statutory maximum of that

provision and is therefore “illegal” and appealable under Marin.

Lubkin’s situation is vastly different. There is no Supreme Court decision holding a

provision of the ACCA unconstitutional. There is no claim that the court was stripped of

its statutory authority to sentence defendants with predicate drug offenses under the ACCA.

There is no dispute that the ACCA provision under which Lubkin was sentenced authorized

a sentence of 15 years. Instead, Lubkin claims that the court made an error unique to his

case when it applied an indisputably valid ACCA provision. Specifically, Lubkin contends

that the district court erred in concluding that his three prior drug convictions under South

Carolina law qualified as ACCA predicates and made him an armed career criminal. In

other words, his enhanced sentence was possible, but the court allegedly made a mistake

specific to his case. Cornette’s holding about impossible sentences based on invalid

statutory provisions does not apply.

In short, Lubkin asks us to hold that an allegedly erroneous ACCA enhancement

always renders a sentence “illegal” because it exceeds the statutory maximum that would

have applied sans enhancement. Contrary to Lubkin’s protestations, Cornette never said

that, and we decline to expand our exception for “illegal” sentences so broadly.

Doing so would sanction an end run around appeal waivers in cases with enhanced

sentences. Defendants with appeal waivers would, like Lubkin, appeal and argue that their

erroneously enhanced sentence was “illegal” because it exceeded the statutory maximum

that would have applied without the enhancement. We would then be required to assess the

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merits of their sentencing claims in every case. And we would dismiss under the appeal

waiver only if the defendant’s claim failed on the merits. But “if that were the law, then

appeal waivers would lose all effect.” United States v. Worthen,

(7th

Cir. 2016) (offering similar analysis). To have teeth, an appeal waiver must assume some

risk of error. Lubkin’s novel rule has defendants take on no risk at all—they always get a

shot at correcting an error. But this court has refused to disregard appeal waivers in this

context, and we do so here. See, e.g., United States v. Anderson,

(4th

Cir. 2006).

In sum, Lubkin’s argument boils down to a claim of legal error. We have already

held that claims of mere “legal error” fall firmly outside our exception for “illegal”

sentences and do not circumvent valid appeal waivers. Taylor-Sanders,

.

We therefore enforce Lubkin’s appeal waiver and do not consider his arguments on the

merits.

C.

Lubkin effectively asks us to hold that he has an unwaivable right to contest an

allegedly erroneous sentence. But we have made clear that in a world where “fundamental

constitutional rights” like the right to a jury trial are waivable, then “surely” the statutory

right of appeal under

can be waived. United States v. Wiggins,

(4th Cir. 1990). Lubkin was free to preserve his right to appeal the district court’s

ACCA determination in one of two ways. He could have “refuse[d] to waive his right to

appeal as a condition of the plea.” United States v. Brown,

(4th Cir.

2000). Or he could have negotiated for a fourth exception in his waiver that would have

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allowed him to contest his ACCA enhancement. Instead, Lubkin promised not to appeal

his sentence at all. And we hold him to that promise.

III.

Accepting Lubkin’s invitation to disregard his appeal waiver would also frustrate

the bargain he made with the government. We have consistently held that “a defendant who

waives his right to appeal for the purpose of obtaining concessions from the government

‘may not . . . ignore his part of the bargain.’” Blick,

(quoting Wiggins,

). Like any contract negotiation, plea bargaining involves give-and-take. Plea

agreements like Lubkin’s culminate in a set of “mutual promises,” J.A. 19, which are made

in exchange for some concession or benefit, see United States v. Edgell,

(4th Cir. 2019). An appeal waiver is one type of valuable promise a defendant may make.

The defendant takes on the “risk of unforeseen legal errors involving his sentence,”

Thornsbury,

, and gains some concession from the government in return.

For its part, the government saves time and resources on appeal. To facilitate these

negotiations, our job is to ensure that each party “receive[s] the benefit of its bargain.”

Blick,

.

Lubkin won several concessions from the government during his plea negotiation.

Two of them potentially saved Lubkin from facing decades in prison. First, the government

promised to dismiss two serious charges, carjacking and discharging a firearm during a

crime of violence. See J.A. 21. The latter carried a mandatory minimum sentence of 10

years, which would have run consecutively to Lubkin’s sentence on the felon-in-possession

charge. See

(c)(1)(A)(iii), (D)(ii). The government fulfilled its promise and

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moved to dismiss the two charges. J.A. 339. The government also promised not to pursue

an attempted murder cross-reference at Lubkin’s sentencing. J.A. 24. That “lowered the

bottom end of his guidelines from 360 [months] down to 235 [months], more than 10

years.” Oral Arg. at 30:50–31:11; see J.A. 318–19. And the government fulfilled that

promise as well. J.A. 313. The government did not make these concessions to be nice. It

bargained for something of value in exchange, including the expectation that it would save

time and resources on appeal that it could allocate to other cases. The appeal waiver was

only valuable to the government because it was an enforceable commitment by Lubkin not

to file an appeal.

But when it came time for Lubkin to uphold his side of the bargain, he changed his

mind and filed this appeal. The government here has regrettably lost much of its side of the

bargain by having to brief the complex merits questions concerning the chemical

composition of methamphetamine. In the future, the government should not have to brief

merits claims like Lubkin’s when they are plainly foreclosed by valid appeal waivers.

These appeals should be resolved through motions to dismiss.

Doing otherwise would destroy the value of appeal waivers for all parties. Allowing

a defendant to circumvent his signed appeal waiver deprives the government of its side of

the bargain in that case. But it also decreases the value of those appeal waivers “as a

bargaining chip in the plea process” for all future defendants because the probability of the

government needing to expend resources on appeal increases. Thornsbury,

.

If Lubkin can “renege on his deal and maintain an appeal, then why would the government

make these kinds of deals in the future?” Worthen,

. By holding Lubkin to

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his promise, we preserve the value of appeal waivers alongside the “chief virtues of the

plea system—speed, economy, and finality.” Wiggins,

(quoting Blackledge

v. Allison,

(1977)).

IV.

Lubkin assumed the risk that the district court might make a legal error when

sentencing him under the ACCA. Because Lubkin is now “attempting to do exactly what

the appeal waiver forbids,” Blick,

, we dismiss his appeal. Bargains are

something that both sides must keep.

DISMISSED

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