534 F. App'x 418
6th Cir.2013Background
- Jesse Mathews committed multiple armed robberies in Colorado, then fled and received assistance from family members (Ray, Kathleen, Rachel Mathews) and James Poteete to hide, transport, and transfer firearms; he later killed a Chattanooga police officer during a subsequent attempted robbery.
- Federal indictment charged the four with conspiracy to obstruct justice (Count One), accessory after-the-fact to Hobbs Act robbery (Count Two), accessory after-the-fact to brandishing a firearm in relation to a crime of violence (Count Three), and Ray & Kathleen with transferring firearms to a felon (Count Eight).
- All four pleaded guilty to Counts One–Three; Ray and Kathleen pleaded guilty to Count Eight. Each plea agreement contained an appellate-waiver barring direct appeals except for sentences above the guideline range or applicable mandatory minimum.
- At sentencing the district court applied Guidelines cross-references: treating first-degree murder as the underlying offense for Count One and (for Ray and Kathleen) for Counts Two and Eight under relevant-conduct §1B1.3, producing much higher offense levels; the court ran Count Three consecutively.
- Defendants appealed the cross-references and consecutive sentence; the government moved to enforce the appellate waivers and dismiss the appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate waivers bar these sentencing challenges | Gov: waivers are valid; none of the sentences exceed the guideline top or mandatory minimum exception | Defendants: sentencing cross-references (murder, relevant-conduct), and consecutive sentence are miscarriages of justice that should void waivers | Waivers enforceable; no miscarriage of justice shown; appeals dismissed |
| Whether applying a first-degree-murder cross-reference to Count One (obstruction conspiracy) constructively amended or varied the indictment | Gov: guideline application; not an amendment/variance to indictment | Defendants: elevates the underlying offense beyond indictment, violating Fifth Amendment | Court: no constructive amendment/variance; at most a Guidelines misapplication, which waivers cover |
| Whether §1B1.3 relevant-conduct cross-reference (murder) for Counts Two and Eight was improper | Gov: relevant-conduct may include foreseeable acts of co-actors; cross-reference permissible | Ray/Kathleen: murder was not in furtherance of or foreseeable from the limited joint activity (harboring/concealing) | Court: relevant-conduct need not be in indictment; even if arguable error, it is fact-intensive and not a miscarriage of justice; waiver bars review |
| Whether imposing Count Three (accessory to brandishing) consecutively was improper | Gov: district court has discretion and provided rationale for consecutive sentence | Poteete/Kathleen: statute under §3 leaves concurrency/consecutive to court; imposing consecutively was erroneous and a miscarriage of justice | Court: district court acknowledged discretion, offered a policy-based rationale, properly exercised discretion; no miscarriage of justice; waiver bars review |
Key Cases Cited
- Stirone v. United States, 361 U.S. 212 (1960) (indictment must charge offenses tried; constructive amendment/variance doctrine)
- United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) (limits on enforcing appellate waivers; exceptions like sentence exceeding statutory maximum)
- United States v. Thompson, 515 F.3d 556 (6th Cir. 2008) (district court statutory misapplication at sentencing can require vacatur)
- United States v. Beals, 698 F.3d 248 (6th Cir. 2012) (interpreting plea-appellate-waiver language regarding guideline-range exception)
- United States v. Ferguson, 669 F.3d 756 (6th Cir. 2012) (limitations on enforcing appellate waivers and recognition of limited exceptions)
- United States v. McGilvery, 403 F.3d 361 (6th Cir. 2005) (standard of de novo review for waiver validity)
- United States v. Hynes, 467 F.3d 951 (6th Cir. 2006) (distinguishing variances and constructive amendments at trial)
- United States v. Cochrane, 702 F.3d 346 (6th Cir. 2012) (district court need not state a specific reason for consecutive sentence but must make its rationale generally clear)