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In re Sealed Case

United States Court of Appeals, District of Columbia Circuit

August 17, 2018

In re: Sealed Case

          Argued October 6, 2017

          Appeal from the United States District Court for the District of Columbia (No. 1:10-cr-00172-1)

          Before: Srinivasan and Wilkins, Circuit Judges, and Sentelle, Senior Circuit Judge.

          OPINION

          SRINIVASAN, CIRCUIT JUDGE

         Often, when a criminal defendant agrees to plead guilty, he also agrees to waive his right to take an appeal or seek collateral review after he is sentenced. The appeal waiver generally precludes him from bringing an appeal on any as-yet-unknown claim that might arise in his upcoming sentencing proceedings. So, for instance, if the defendant comes to believe that the trial court committed an error in determining his sentence, his appeal waiver generally would bar him from appealing on that ground.

         But what if the claim the defendant wishes to raise on appeal concerns, not an alleged error committed by the trial court at sentencing, but instead the performance of the defendant's own attorney at sentencing? Suppose the attorney's performance in the sentencing proceeding is so poor that it violates the defendant's Sixth Amendment right to counsel. Does a defendant's generic appeal waiver encompass a claim that he received ineffective assistance of counsel in connection with his sentencing?

         We conclude that a generic appeal waiver does not affect a defendant's ability to appeal his sentence on yet-to-arise ineffective-assistance-of-counsel grounds. The appellant in this case executed a generic appeal waiver, with no explicit waiver of his right to appeal on ineffective-assistance-of-counsel grounds. The appeal waiver thus does not prevent him from appealing on the basis that he received ineffective assistance of counsel in his sentencing proceeding. As to the ultimate merits of appellant's ineffective-assistance claims, we cannot conclusively resolve them on the record before us. In those circumstances, we ordinarily remand the claims to the district court for further proceedings, and we do so here.

         I.

         Appellant pleaded guilty to one count of conspiracy to distribute five kilograms or more of cocaine on board an aircraft registered in the United States and one count of conspiracy to distribute and possess with intent to distribute 1, 000 kilograms or more of marijuana. As part of the plea agreement, appellant "waive[d] any and all appeals and collateral attacks in this case and agree[d] that this case [would] become final once he ha[d] been sentenced." Plea Agreement ¶ 24.

         At the sentencing hearing, the district court first sought to determine the appropriate sentencing-guidelines range. The Presentence Report recommended a three-level increase in appellant's base offense level based on his major role in a drug trafficking conspiracy. See U.S.S.G. § 3B1.1(b) (2009). Appellant's counsel argued against the adjustment, contending that appellant was not a manager or supervisor of the conspiracy. The district court declined to adjust appellant's base offense level based on his role in the conspiracy. The court determined that the appropriate guidelines range was 135 to 168 months of imprisonment.

         The district court then set out various considerations guiding its determination of appellant's sentence. One consideration was that the court considered appellant neither a major participant nor a minor participant in the conspiracy. The court ultimately decided to sentence appellant to 120 months of imprisonment on each of the two counts of conviction, with the sentences to run concurrently.

         II.

         Appellant seeks to appeal his sentence on the ground that he received ineffective assistance of counsel at sentencing in various respects. Among appellant's ineffective-assistance arguments, he contends that his counsel should have argued for a downward adjustment based on his minor role in the drug-trafficking conspiracy.

         The government argues that, by executing a general appeal waiver, appellant relinquished his right to appeal his sentence on grounds of ineffective assistance of counsel. We disagree. We conclude that appellant's generic appeal waiver did not encompass a claim that his attorney provided him constitutionally ineffective assistance at sentencing. While appellant thus can raise his ineffective-assistance claims in this appeal, we cannot definitively resolve the ...


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