885 F.3d 728
D.C. Cir.2018Background
- Powers led renovation of historic D.C. property and learned the building contained asbestos; law required abatement before renovation.
- Despite assurances, Powers directed continued work; workers removed asbestos without protective gear and left materials exposed.
- D.C. authorities issued a cease-and-desist; a grand jury indicted Powers for Clean Air Act violations and wire fraud; Powers pleaded guilty to one count under 42 U.S.C. § 7413(c)(1).
- Plea agreement set a base offense level and allowed both parties to argue two sentencing enhancements (U.S.S.G. § 2Q1.2(b)(1)(A) and (b)(2)); Powers waived the right to appeal any sentence within or below the Guidelines range except for ineffective-assistance claims or certain other limited exceptions.
- The district court applied both enhancements, calculated a Guidelines range, and sentenced Powers to 20 months’ imprisonment with supervised release; Powers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Powers can appeal procedural or substantive sentencing objections despite plea waiver | Powers: waiver unenforceable or not applicable; court erred applying enhancements and failed to avoid disparities | Gov: written plea agreement contained a knowing, intelligent, voluntary anticipatory waiver covering these challenges | Waiver was knowing, intelligent, and voluntary; court enforces waiver; appellate review of those challenges barred |
| Whether plea agreement is a contract of adhesion making appeal waiver unenforceable | Powers: plea terms were one-sided and therefore unenforceable | Gov: Guillen permits bargained-for appeal waivers if knowing and voluntary | Rejected; fairness of terms insufficient to invalidate a knowing waiver |
| Whether district court’s colloquy misstatement about government appeal rights undermines waiver | Powers: court misstated government’s appeal rights, so waiver may be misunderstood | Gov: colloquy correctly explained Powers’ relinquished rights; any misstatement about government appeals did not affect Powers’ understanding | Rejected; Powers affirmed understanding and court correctly explained his waiver |
| Whether Powers may raise ineffective-assistance-of-counsel claim on appeal though raised for first time in reply brief | Powers: trial counsel failed to present mitigation at sentencing; ineffective-assistance claim exempt from waiver | Gov: ineffective-assistance claims are excepted from waiver but must be timely raised; raising it first in reply forfeits it on appeal | Court: claim falls outside waiver but was forfeited on appeal by being raised only in reply; may be pursued in § 2255 collateral review |
Key Cases Cited
- United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009) (enforcing bargained-for appellate waivers if knowing and voluntary)
- United States v. Cunningham, 145 F.3d 1385 (D.C. Cir. 1998) (discussing standards for enforcing plea-related waivers)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective-assistance claims may be raised in collateral § 2255 proceedings)
- United States v. Goodson, 544 F.3d 529 (3d Cir. 2008) (permitting response to appellee’s first-asserted waiver argument in a reply brief)