United States v. Bennie Bascomb, Jr.

1292 Gong states that Falun Report also America, from UNITED of generally released de- STATES

followers were punishments Plaintiff-Appellee, tention and that harshest of were for core leaders reserved v. Zheng movement. conceded he not a Falun Gong leader. evidence further BASCOMB, Jr., Bennie Defendant- Zheng indicates that was able to relocate Appellant. parents’ village to his rural and to live No. 05-13932 years being

there for three without de- Non-Argument Calendar. again physically despite tained or harmed practice that he admits he continues to Appeals, United States of Court Gong.3 Falun We therefore conclude Eleventh Circuit. Zheng has not carried his burden show persecu- possibility reasonable of future 14, June 2006. upon tion his return China. Zheng

Because we conclude that has not stringent

satisfied the less standard for

asylum, deny petition we for also re- withholding

view of for his claims of re-

moval under the INA and for relief. CAT Gen., Forgue Att’y v. U.S. F.3d (11th

1282, Cir.2005) (noting 1288 n. 4 petitioner

where fails to claim establish of

asylum merits, his claims for withhold-

ing of removal CAT necessarily relief

fail); Najjar, Al 1292-93, 257 F.3d at

(same).

TV. Conclusion

Involvement Falun Gong with China

by itself does person asy- not entitle a

lum in the United States. conclude supported by the IJ’s decision is sub-

stantial deny Zheng’s peti- evidence

tion.

PETITION DENIED. Zheng bility 3. suffering persecution, cannot fear well-founded future we need persecution persecution by he could if avoid decide whether relocation is reasonable. China, relocating Zheng successfully to another persecution under That avoided years all the parents’ circumstances it would be reasonable three village for evi- expect indicating do so. C.F.R. dence there not a reasonable 208.13(b)(2)(h). § possibility Zheng Because we persecu- conclude suffer future Zheng possi- upon has not established reasonable tion China. return to 841(a)(1) § of 21 U.S.C.

guilty to violations 924(c)(1)(A). § Bascomb and 18 U.S.C. in accordance with the man- sentenced was datory mínimums set out those stat- agreement, Bas- plea As of his utes. voluntary knowing and comb entered and the of his waiver appeal were included grounds of this waiver, of that waiver. On the basis government’s motion to dis- grant we appeal. Bascomb’s miss

I. conviction resulted from marijuana at his home plants cultivation pistol of a .22 caliber possession and his Bascomb’s wife was the time of his arrest. (the term charged manufacturing with also statute) marijuana. The in the used charges drop offered ernment plead would his wife Bascomb against growing that he had been guilty, admit marijuana plants hundred more than one handgun, possessed the and that he had agree to an waiver. trig- Those violations agreed to do so. five-year sentences mandatory gered consecutively. U.S.C. must run 841; § 924. § 18 U.S.C. knowing dispute Bascomb does not Gary (Courfr-Appointed), Hamm Daniel waiver, of his voluntary nature AL,

Montgomery, for Bascomb. change transcript of his and the Redmond, Atty., Mont- Asst. U.S. magistrate Susan shows that proceedings AL, gomery, for U.S. about specifically questioned

waiver, that Bascomb receiving assurances doing; defense what he was understood At waiver. acknowledged the counsel also sentencing proceedings, HILL, CARNES, PRYOR and Before would that Bascomb court indicated Judges. Circuit but for shorter sentence received a by statute. required mínimums CARNES, Judge: Circuit contention rejected Bascomb’s The cruel and unusual was that the sentence Bascomb, appeals the 120- Bennie Jr. unreasonable agreed that was pleaded imposed after he month sentence encouraged Bascomb to it. substantially diminishes the value notwithstanding court did so government, the fact that the waiver to the extension to squarely the issue was covered defendants who are willing waiver, to bargain away their terms of the which express- sentence. Accordingly, where it ly appeal any ruled out an on is clear ground from the plea agreement and the Rule except ineffective assistance of counsel and 11 colloquy, or from some other prosecutorial misconduct. record, that the defendant knowing- Bascomb contends that the sentence vio- ly voluntarily entered into a sen- Eighth lates the Amendment it because waiver, appeal tence that waiver should cruel and government unusual. The con- be enforced without requiring tends that appeal should be dismissed ernment to brief the merits of ap- to waive peal. appeal Where the is due to be appeal. argues dismissed, sooner is better than later. government object because the did not at Buchanan, United 1005, States v. 131 F.3d sentencing to ap- his stated intention to (11th Cir.1997). 1008-09 peal, or to the district court’s encourage- ment of the appeal, acquiesced it has An appeal waiver is valid a defen appeal or waived the waiver. Bas- dant enters into it knowingly and volun argues comb also that he should not be Bushert, tarily. 997 F.2d at 1350. We any agreement bound to waiving have consistently enforced knowing and challenge an unconstitutional sentence. voluntary appeal according waivers Brown,

their terms. See United States v. (11th 1257, 415 Cir.2005); F.3d 1272 Unit II. 1123, ed States v. Frye, 402 F.3d 1129 We decide the effectiveness of the (11th Cir.2005); Williams v. United appeal waiver now because requiring the States, (11th 1340, 396 Cir.2005); F.3d 1342 government to file brief where there has Rubbo, United 1330, States v. 396 F.3d been a valid (11th undermines the Cir.2005); 1335 United States v. interests of government both the Weaver, and de (11th 1320, 275 F.3d 1333 Cir. generally. fendants The reason: 2001); Pease, United States v. 240 F.3d 938, (11th Cir.2001); Buchanan, 131 As in explained we [United States v.] F.3d 1009. Bushert, plea agreements containing such waivers save the time Howle, United States v. 166 F.3d 1166 money by conveying an immediate (11th Cir.1999), involved a plea agreement tangible benefit the saving of in which Howie waived to appeal prosecutorial resources. 997 F.2d at his sentence and the right to attack his (11th [1343, Cir.1993)] A sentence conviction in any post-conviction proceed appeal waiver is also of value to a defen- ing. Id. at that, 1167. Undeterred dant, .because it chip is another the de- appealed Howie on a basis that was not bring fendant can to the bargaining ta- covered either of the two excep limited ble and trade for additional concessions tions carved out in waiver. See government. from the Requir- See id. id. at 1167 n. 2. Seeking to escape the ing to file an appeal tight waiver, grip of his Howie contended brief though even there is an it was invalidated had no effect on as dicta that pur- interpreted encouraging statements court’s acceptance prior at 1168. the court’s Id. appeal. sue had said: Id. at 1168. We determined agreement.” court does have district say that if I could hard to see I’ve tried modify plea agree- the terms of a power to I can’t heartland. outside the this was ment, included the which Howie is____ however, say, I say that parties Id. reasoned waiver. power think don’t that included the had struck deal that, that means by saying depart, and waiver, the terms of that altering And me. you are allowed heart out of waiver would have cut the disagrees with Circuit if the Eleventh ap- “Having at 1169. wrong, bargain. I did have See id. says that I am me and can come then we depart, proved plea agreement, the to the power likely, I already indicated I have its right change back. to court had no more discretion, probably not would given the the change have to terms than it would probably in case. I would prison do any contract.” Id. We terms of other ---- halfway house more than do no in- appeal a even that waiver observed appeal right of the to cludes a waiver in this case but depart ISo cannot However, we did error.” Id. “blatant appeal. an and welcome invite circumstances—-for note that extreme “[i]n can you so that stay report the date instance, had district court sentenced the to .... you me if want appeal process public flogging to a Howie —due case, the present in the Id. As be heard de- may require appeal that an object to the dis- in ment Howie did id. at 1169 previous waiver.” See spite appeal for Howie court’s invitation trict n. 5. do having waived despite (“Neither the Government so. See id. flogged, to be not scheduled Howie was plea bar- brought the nor the defendant merits of the declined to reach the so we attention after this to the court’s gain on the dismissed appeal and made.”). The court was was statement at 1169. Id. as it was written. specifically and had aware of the waiver required to had been If the in about it the the defendant questioned appeal the the court of remind knowing ascertaining that it was course of ap- encouraged Howie to court when the in at 1167. As the voluntary. Id. would have in that case peal, the decision case, expressly stat- party neither present con- differently. id. We out See come would bar court that the waiver ed to the therefore, forecloses clude, that Howie court had the issue that the appeal an court that if a district argument Baseomb’s pursue. the defendant encouraged partic- appeal encourages defendant case, however, In this at 1167-68. id. does not ular issue and in the acknowledge counsel did defense there then and assert court’s comments exchange leading to the waiver, prevent- it is barred only “to could the defendant appeal. doing ed from so any right extent we have negotia- limited and that has been reading of and our in Howie The result tions.” in holding our earlier consistent with it is 1008-09, an Buchanan, F.3d at that the district In Howie we concluded despite the was enforceable reasonably appeal waiver “most court’s statements were hearing ations, fact that at the sentence par- preserve we want to disputed particular ties had the merits of a appeal the fact that we think that the sentencing issue. See id. at 1009. We sentence the impose Court has to in this “Despite sharp stated: disagreement way case Congress mandate from unreasonable, parties issue, on the merits of that and that— there is no indication either the colloquy interrupted court counsel to plea agreement or parties inform he could not agreed the issue would be excepted from issue presented unless he it to the district the appeal waiver the broad terms of “[tjhen first, court you can appeal it.” which would cover it.” Id. at 1007. We argued Counsel that the sentence of 120 “Notwithstanding concluded: Buchanan’s months the court would be forced to im- explicit reservation of argue pose was unreasonable and cruel un- position about that issue at sentencing, usual. The that the sentence exercised, a right that he the issue was not was unreasonable but not that it was cruel exempted from the waiver. We “Yes, unusual. Then stated, counsel enforce the waiver according to its Honor, Your record,” but I’ve my made terms.” Id. at 1009. Buchanan estab- and replied: the court “Certainly. IAnd vigorous lishes that a dispute about an you think should perhaps pursue it.” during issue sentencing the proceedings concurrence, In his special our colleague preserve does not appeal issue for “[wjhat suggests counts, really ac- when the terms of the appeal waiver do Howie, cording to is what government the except not it from the waiver. told the defendant.” think really what counts under Howie and all of our other In present the case plead Bascomb appeal waiver decisions is what the defen- guilty, plea ed and his accepted was during dant and the into the change plea proceedings in which he plea bargain. What counts is whether the specifically questioned was about un his defendant knowingly and voluntarily derstanding of the waiver. The agreed to waive right his to appeal an court found that the waiver was knowingly issue or issues in an agreement the court made, voluntarily and Bascomb does accepted and which led to the dispute that it was. The district court sentence. only counts, Not is that what accepted plea agreement, the including as that is what should count. We would not it did waiver. Bascomb was revisit the Howie decision prior even if the adjudicated guilty on the basis of his plea panel precedent permitted rule us to do so. pursuant agreement. During the sentencing proceedings, defense counsel holding Howie reiterates what we argued minimum sen before, Buchanan, have held 131 F.3d at tence the court was forced impose to was 1008-09, which is that knowingly and vol unreasonable recognized problem untarily entered plea agreements contain he would raising that issue on appeal. ing appeal waivers are like contracts He said: which and the defendant

Prior to the Court announcing Howle, sentenc- have bargained for a deal. See ing, Honor, just Your for the record to F.3d at 1168. Defendants and govern the extent any right we have to ment alike benefit from ability to bar and that by has been negoti- limited gain and undermining the enforceability of length, all that use that its which is less than the stat- parties harms bargains such Buchanan, maximum, utory For and un- 131 F.3d at 1008. renders cruel them. others, reason, long as an among as usual. knowingly voluntarily waiver APPEAL DISMISSED. plea agree- of a part into as valid entered ment, agreement accepted and that HILL, Judge, specially Circuit It court, the waiver enforceable. concurring: or comments cannot be vitiated altered during sentencing. makes Bascomb, Jr. from his appeals Bennie ten-year conviction and sentence of con- his sentence is one Appealing finement, sentence, asserting that his man- traded for the

rights Bascomb statute, Eighth dated violates drop charges against promise ment’s from cruel Amendment be free negotiating agreement, In an his wife. punishment. and unusual The United away bargain was free Bascomb States moves dismiss Bascomb’s as raise constitutional issues well grounds he has waived ones, he did so. as non-constitutional as of his Brown, (enforcing 415 F.3d plead guilty. conten- despite defendant’s he was tion the statute under which n I. doc- non-delegation

convicted violated the Constitution); trine Article I of marijuana grew at his home.

Williams, (holding F.3d at 1342 that 396 did that he not contend of a language sentence plain wife, in the drug. trafficked § a preclude can 28 U.S.C. however, in also lived home and was of claim on ineffective assistance marijuana. charged possession of the with Rubbo, counsel); (holding F.3d at 1335 arrest, pos- At the time of Bascomb sentence on a charged subsequently and was also sessed in Apprendi/Booker grounds can waived be a possession pistol. with .22 caliber a plea agreement). dealer, Bas- drug he was not a Since imply do not mean in had little to offer the comb a sentence violates did, how- exchange charges. for lesser He it cruel and Eighth Amendment because is result, ever, a go want his wife free. As than its for some reason other unusual govern- a deal in agreed to which the he length always be an barred against his wife dropped charges ment Howle, 166 n. 5 F.3d at 1169 waiver. See admis- guilty plea for his exchange in (“In instance, extreme circumstances'—for 100” growing he was “more than sion that if Howle court had sentenced the district plants marijuana plants number may. flogging process to a re public —the —due five-year trigger mandatory a that would a quire despite be heard waiver.”). possession as well All sentence —as previous we need to decide mandatory handgun triggering a one may, here that a defendant and this —also minimum Under did, five-year sentence. voluntarily waive knowingly statutes, be re- these sentences would ground on the sentence quired consecutively.1 to run Court is going impose, it because has authority so, no other to do is unreason- sentencing, At ex- .... able The fact Eighth pressed length concern about the Amendment, that it’s cruel and unusual mandatory minimum consecutive sen- light in of the fact that he has a criminal years: tences—ten one, history category of prior no involve- ironic, if drug It’s almost but he awere enforcement, ment in yet law the Court dealer he’d almost shape. be better has to in this circumstance impose mean this is an instance if where he was sentence of a twenty hundred and trafficking drugs so he could turn months. It our position that this sen- in, somebody get then he would a lesser tence is cruel and unusual and unreason- person perhaps sentence. He’s"a who able under 3553. growing drugs for gets himself The district court stated that he harsher sentences. It’s like the law has with the defendant that the sentence was turned on its head .... The court offi- unreasonable, but held that it did not vio- cially states here that but for the man- Eighth Amendment, late the to which Bas- datory minimum give sentence would “Yes, responded, Honor, comb your significantly defendant less sen- my I’ve made .... record.” The tence The sentence would district court be dif- agreed, Dramatically stating, “Certainly. ferent. different.2 And I think you perhaps pursue should it.” objected sentencing two consecutive five-year mini- At this point the court govern- asked the mum grossly sentences were excessive and ment, else, “Anything Counsel?” The Eighth violated his Amendment right ernment responded, “Not from the proportional punishment. See Solem v. ment, Your Honor.” Helm, 277, 303, 463 U.S. 103 S.Ct. 3001 announced, court then “The (1983) (“The requires Constitution us to court overrules the contention that examine Helm’s sentence to determine sentence is cruel and unusual. I agree do crime”). is proportionate to this He stated unreasonable, it’s but that doesn’t that he preserve wished to right the being amount to cruel and unusual.” appeal the on ground. sentence this Although Bascomb waived right his court, noted that “You can’t appeal all issues save ineffective assistance appeal that I pass unless on it .... first of counsel and prosecutorial misconduct, You present have to first it to me and then appeals he his asserting sentence that it I have to find whether it’s unreasonable or violates his right constitutional under not.” Eighth Amendment to a sentence propor- Bascomb’s then stated: counsel tionate to his government crime. The filed And it our position case, is dismiss, a motion to upon Honor, Your we believe the agreement sentence the to waive to appeal. discloses, 1. As far sentence, as the govern- record the required imum the amount of mari- gave nothing ment further and Bascomb re- juana case, talking we're about in this the nothing ceived but his wife’s release. guidelines sentencing range would be be- eighteen tween twelve and months.” 2. sentencing, At the Probation Officer advised the court that ”... absent the min- surprise upon Imagine the defendant’s ac- government that the argues judge’s interpre- district learning the objec- sentencing to both at quiesced law, to the defen- explained of the tation contradicting by not tion and this trumped by has been sentencing, dant at of the interpretation court’s the district signed he with the the contract events at sen- of the consequences legal surprising, All more attorney. ment’s tencing. sentencing when the ex- since at defendant, including law to the plained the II. government voiced mute, not objection, attorney its stood no doubt, majority no as the There can be the inviolate contrac- reminding anyone of holds, in his that Bascomb today knew rights tual not to his conviction plea ultimately judge’s over the prevail would than any grounds other and sentence interpretation of the law.4 prose- of counsel or assistance ineffective disturbing holding particularly This Furthermore, I misconduct. cutorial plea colloquy since we have enshrined the result majority that agree with the volun- knowing hallmark of a as the v. by United States this case is controlled smidgen tary plea. Leaving out even Cir.1999). (11th Howle, 166 F.3d 1166 requires finding this mantra however, that court suggest, write to voluntary. knowing neither nor plea was might well revisit Howie. Nonetheless, when an affirmative misstatement makes Howle, authority of judicial Under defendant, example, “if say, for law to the States, I had heretofore which the United that, right to you have the sayI this or do has judge, in the district reposed believed legal effect on the there is no appeal,” executive, an As transferred been it never oc- though It is as whatsoever. Attorney.3 Howle States sistant United It is dicta. curred. expla interpretation instructs reluctantly apparently is the law. This rights including nation of the defendant’s — concur. dis appeal provided — sentencing judge to the defendant trict merely rather dicta. binding, Howle, counts, according really What told the defendant.

what sen- course, counting from the desired signifi- backwards that a this case illustrates 3. Of charge already that will judicial authority has case to the portion of tence in this cant By by Congress process, to itself. been of this produce transferred it. As sentences, Con- creating mandatory minimum delegated forego obli- its ernment chooses of the commission of gress in advance execution of the gation "the faithful to see to —well pertinent issues resolved the offense—has dismissing charges against the wife. laws” crafting appropriate and considerations given no eliminated and third branch is (appro- made While much as been sentence. process. play in this role to submitted) legis- "judicial about priately it is adjudica- "congressional lating,” this sort that, taught when 4. We are blurring of represents an unfortunate tion” proceedings, legal explains the result of responsibilities of our three separate during sentencing, occurring including events government. branches defendant, ask the defendant should branch, counsel, executive Government explanation correct. whether the AUSA charges by selecting from gets the act into thereby transgressions, possible menu of

Case Details

Case Name: United States v. Bennie Bascomb, Jr.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 14, 2006

Citation: 451 F.3d 1292

Docket Number: 05-13932

Court Abbreviation: 11th Cir.