District Court Rendered Appeal Waiver Ambiguous, But Sentence Affirmed

U.S. v. Wilkens, 2007 WL 2372381 (8/21/07)(Published) - The defendant did not waive his right to appeal his sentence, despite the clear wording of the plea agreement appeal waiver, because the district court muddled the meaning of the waiver at the plea hearing. The district court explained that the defendant had waived the right to appeal except if the "sentence was imposed in violation of the statute," [either § 3553(a) or 3742]. If the court's statements can clarify an appeal waiver, they can also render the waiver ambiguous and render the defendant's waiver unknowing.

But, the 10th affirms the sentence. The district court erred when it adopted the PSR's reckless endangerment enhancement under § 3C1.2 over the defendant's objection that he just fled the traffic stop and didn't speed away with an officer half-way in the vehicle, as the PSR alleged. Just fleeing would not have warranted the enhancement. However, since the career offender provisions applied, and therefore the offense level was the same regardless of the enhancement, the error was harmless. The 10th rejected the defendant's argument that the enhancement was not harmless because it might affect his security designation. "We determine whether an error is harmless with reference only to the sentence imposed."

The 10th put aside the "vexatious" question whether a presumption of reasonableness applies to a sentence within the guideline range determined by a departure under the Guidelines. It was not unreasonable for the d.ct. to refuse to deviate from the guideline range based on a disagreement with the policies underlying a particular guideline provision, in this case the irrationality of the career offender designation involving prior drug offenses. Nor did the alleged over-statement of the defendant's criminal history render unreasonable his below-guideline-range sentence.