United States v. David CillaUnited States v. David Cilla
Valentin Rodriguez, Jr., Valentin Rodriguez, PA, West Palm Beach, FL, for Defendant-Appellant
Before MARCUS, MARTIN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant David Cilla appeals his 180-month sentence, imposed after pleading guilty to being a felon in possession of a firearm and ammunition. On aрpeal, he challenges the enhancement he received pursuant to the Armed Career Criminal Act (“ACCA“). The Government argues that Defendant‘s appeal is barred by his sentence-appeal waiver. Because we conclude that Defendant‘s challenge to the ACCA enhancement falls within an exception to his appeal waiver, we address the merits of his claim. After careful review, we affirm his 180-month sentence.
I. BACKGROUND
In October 2012, officers оbtained permission from Defendant to search a freight container located in the backyard of his home. The search uncovered items that may have been used to grow marijuana. When officers asked to search his home, Defendant consented and told officers that he had a firearm in the kitchen. During the search of the home, officers located, among other things, several firearms, ammunition, a bullet-proof vest, a baggie of marijuana, аnd a baggie of cocaine.
A federal grand jury subsequently charged Defendant with: (1) being a felon in possession of a firearm, in violation of
Defendant later pled guilty to Count 1 pursuant to a written plea agreement and, in exchange, the Government agreed to dismiss Counts 2 and 3. The plea agreement stated thаt Defendant understood the district court must impose a minimum sentence of 15 years’ imprisonment and may impose a statutory maximum of life imprisonment. The plea agreement also contained a sentence appeal waiver, which stated that:
The defendant is aware that
Title 18, United States Code, Section 3742 andTitle 28, United States Code, Section 1291 afford the defendant the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by the United States in this plea agreement, the defendant hereby waivеs all rights conferred bySections 3742 and1291 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statutе or is the result of an upward departure and/or an upward variance from the advisory guideline range that the Court establishes at sentencing. The defendant further understands that nothing in this agreement shall affect the government‘s right and/or duty to appeal as set forth inTitle 18, United States Code, Section 3742(b) andTitle 28, United States Code, Section 1291 . However, if the United States appeals the defendant‘s sentence pursuant toSections 3742(b) and1291 , the defendant shall be released from the above waiver of appellate rights. By signing this agreement, the defendant acknowledges that the defendant has discussed the appeal waiver set forth in this agreement with the defendant‘s attorney.
At the change-of-plea hearing, the district court questioned Defendant about the sentence-appeal waiver and Defendant acknowledged that he was waiving his right to appeal his sentence.
In anticipation of sentencing, the probation officer prepared a Presentence Investigation Rеport. The PSR assigned Defendant a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because Defendant committed the instant offense subsequent to sustaining at least one felony conviction for a controlled substance offense. Because the probation officer determined that Defendant was an armed career criminal under U.S.S.G. § 4B1.4(a), Defendant‘s offense level was increased to 33. The armed career criminal designation was based оn several Florida serious drug convictions, including a conviction for delivery of cocaine in 2000, a conviction for possession of cocaine with intent to deliver in 2001, three convictions for delivery of cocaine in 2008, аnd one conviction for possession with intent to deliver cocaine in 2008. With a three-level reduction for acceptance of responsibility, Defendant‘s total offense level was 30.
Based on a total offense level of 30 and a criminal history category of VI, Defendant‘s guideline range was 168 to 210 months’ imprisonment. However, because the ACCA enhancement required a mandatory minimum of 15 years’ imprisonment, Defendant‘s guideline range became 180 to 210 months’ imprisonment, pursuant to U.S.S.G. § 5G1.1(c)(2).
The district court sentenced Defendant to the mandatory minimum of 180 months’ imprisonment. Defendant did not file a timely notice of appeal. Defendant later filed a
At the resentencing hearing, Defendаnt confirmed that he did not have any objections to the PSR. The district court thereafter re-imposed the 180-month sentence. This appeal followed.
II. DISCUSSION
Defendant argues that his ACCA-enhanced sentence is unconstitutional in light of the Suрreme Court‘s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Government counters that we should dismiss Defendant‘s appeal because he waived his right to appeal his sentence. We address the Government‘s argument first, and then turn to the merits of Defendant‘s apрeal.
A. Sentence Appeal Waiver
Defendant acknowledges that his plea agreement contained a sentence-appeal waiver, but argues that his Johnson argument falls within the exception to the appeal waiver that allows him to apрeal a sentence in excess of what the law permits.
We review the validity of a sentence-appeal waiver de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce such a waiver if it was entered into knowingly and voluntarily. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To establish that a waiver was both knowing and voluntary, the Government must demonstrate that: (1) the district court specifically questioned the defendant about the appeal waiver during the plea colloquy or (2) the record makes clear that the defendant understood the full significance of the waiver. Id. at 1351.
Here, Defendant‘s sentence-appeal waiver is enforceable because it was entered into knowingly and voluntarily. The district court specifically questioned Defendant about the waiver during the plea colloquy. Nevertheless, the appeal waiver contained three exceptions, one of which provided that Defendant could appeal his sentence if it exceeded the maximum length permitted by statute. An appeal waiver does not bar a claim challenging an ACCA enhancement where the defendant reserved the right to appeal a sentence in excess of the statutory maximum and the ACCA enhancement increases that maximum. See United States v. Jones, 743 F.3d 826, 828 n.2 (11th Cir. 2014) (referencing with apрroval a prior denial of the Government‘s motion to dismiss the defendant‘s appeal of the district court‘s application of the ACCA enhancement based on an appeal waiver that permitted an appeal of a sentence in excess of the statutory maximum). In Jones, the defendant would have faced a statutory maximum of only 10 years’ imprisonment without the ACCA enhancement, meaning that, if improperly applied, Defendant‘s 15-year sentenсe under the ACCA was a sentence “in excess of the statutory maximum” and thus the defendant‘s challenge to that enhancement fell within the exception to the appeal waiver. Id.
Here, Defendant‘s appeal waiver рermitted him to appeal a sentence in excess of the statutory maximum. The statutory maximum sentence for a
B. ACCA Enhancement
We review de novo whether a prior conviction qualifies as a predicate offense under the ACCA. See United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009) (considering whether а prior conviction was a serious drug offense under the ACCA). Because Defendant challenges his ACCA enhancement for the first time on appeal, our review is limited to plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review, we will reversе where there is “(1) an error (2) that is plain and (3) that has affected the defendant‘s substantial rights; and ... (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).
Pursuant to the ACCA, a defendant convictеd of being a felon in possession of a firearm who has 3 or more prior convictions for a serious drug offense or a violent felony faces a mandatory minimum of 15 years’ imprisonment. See
Defendant asserts that the district court did not conduct the proper analysis under Johnson to determine whether his predicate offenses qualified for ACCA status based on the now-voided residual clause. Defendant‘s argument is wholly without merit, аs his designation as an armed career criminal was not based on the residual clause, but instead upon his having three prior convictions for serious drug offenses. The PSR—which was not objected to—stated that Defendant qualified for thе ACCA enhancement based upon six prior convictions for either delivery of cocaine or possession with intent to deliver cocaine, all of which qualify as serious drug offenses under the ACCA. See United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (concluding that a conviction under