*2 ARNOLD, Before RICHARD S. Chief WOLLMAN, Judge, BRIGHT and Circuit Judges.
WOLLMAN, Judge. Circuit Harry appeals from Lee Michelsen an or- by the der court1 dismissing district from his sentence based Michel- appellate rights sen’s to a plea agreement. We affirm.
I. charged pay with failure to past due violation of the Support Recovery (CSRA), Child Act (1992). private He retained and counsel to have his case consented heard Magistrate Judge. a United States A reached. was soon agreement provisions: following included the 1. AND ACKNOWLEDGMENT WAIV- ER OF RIGHTS AND UNDERSTAND- ING OF MAXIMUM PENALTIES: The agrees he has fully been statutory advised of constitutional herein, rights and that he has in- been charges allegations formed of the therefor, against penalty him and the rights, that he charges understands these penalties. The defendant further agrees that he understands that enter- hereafter, guilty as set forth Cambridge, 1. The William G. trict of Honorable Chief Nebraska. Judge, United States District Court for the Dis- statutory hearing day, At a commenced that same waiving certain he will be accepted to which he is other- rights judge2 constitutional negotiated. During entitled. wise the hear- ing, following exchange occurred: PLEA PROCE- AGREEMENT TO RIGHT WITHDRAW DURE—NO Um, THE going COURT: I’m to hand to REJECTS RECOM- PLEA IF COURT your counsel three documents and can *3 The United States and MENDATION: just keep them for the there moment. Agree- that this Plea agree the defendant petition to plea First we have a enter a of the Court presented ment is guilty purports your of—which to contain 11(e)(1)(B) the Federal of Rule of Rules signature your on that document. Is that Procedure, provides, which Criminal signature on to the page the next last of government that the among things, other that document? agree or a recommendation will make Yes, Honor, MR. Your MICHELSEN: it opposed request the defendant’s [sic] is. sentence, particular but that SUCH THE filling peti- COURT: And in out this ARE RECOMMENDATIONS NOT tion, petition? you who out it filled Is COURT ON THE BINDING your attorney’s handwriting peti- or on the NOT DEFENDANT MAY WITHDRAW tion? if PLEA the Court re- HIS OF GUILTY My attorney MR. MICHELSEN: filled it jects such recommendations.
out for me.
THE COURT:
he—did
Further,
And did
he fill it
United States will
4.
...
your
out in accordance to
instructions as to
period of incarceration of 6
recommend a
you
how
it?
months,
answered
period of incarceration
suspended
placed
shall
and defendant
Yes,
MR.
Your
MICHELSEN:
Honor.
period
supervised probation
on
for a
of 5
THE COURT:
those are the
And
answers
period
years during which
the defendant
you gave?
any required
shall make
ar-
Yes,
MR. MICHELSEN:
Your Honor.
by
rearages payments
ordered
THE
Then
Okay.
COURT:
we have a
required pay-
Failure to make the
Court.
plea
pages
agreement which is four
and it
imposition
ments
result
purports
signature
your
Page
to have
on
4.
court’s
of incarceration----
your signature
Page
on
4?
Is that
Yes, Your Honor.
MR. MICHELSEN:
6.
AND AP-
WAIVER OF DEFENSE
hereby
PEAL
Defendant
RIGHTS:
THE
Okay.
COURT:
And then we have a
any right
to raise
waives
factual
which is
basis statement
three
and/or
any post-conviction
file
writs of ha-
pages
page
purports
but on
the second
and/or
corpus
concerning any
nobis
your
your
beas
or coram
signature.
also to have
Is
defenses,
motions,
probable
and all
cause
signature on there?
determinations,
objections which de-
Yes,
MR.
Your Honor.
MICHELSEN:
fendant has asserted
could assert to this
anybody
THE COURT: Did
force or
prosecution
entry
and to
Court’s
sign any
threaten or coerce
of these
imposition
judgment against
documents?
(sen-
of sentence
18 U.S.C.
under
No,
MR.
Your Honor.
MICHELSEN:
appeals).
tence
Arraignment
Transcript
Hearing
on
at 3-
(emphasis in
Agreement
origi-
Plea
at 1—4
4. And later:
nal).
February
agreement,
dated
Now,
you’re offering
THE COURT:
signed by
both Miehelsen and his
plead pursuant
agreement.
attorney.
We
Thalken,
D.
braska.
The Honorable Thomas
Magistrate Judge
States
for the District of Ne-
Hearing
Arraignment
on
at 9-
you’ve
Transcript of
which
indi-
plea agreement
have the
explicit
11. No
reference was made
on there.
your signature
[Address-
cated
provision
in the
hearing
Government],
you summa-
ing the
waived his
which Michelsen
for the Court?
plea agreement
rize the
appeal his sentence.
Yes, Your Hon-
GOVERNMENT]:
[THE
Thereafter,
magistrate judge granted a
four-page
is a
or. The
permission
counsel for
motion Miehelsen’s
in this case
the Defendant
document which
subsequently
waived
withdraw.
agree to certain
and the United States
pro
proceeded
se.
counsel
is that the Defendant
Among them
terms.
sentencing hearing,
At the
charge in the one
plead guilty to the
will
following
made the
recommendation:
that,
exchange for
count Information.
you.
Thank
[THE GOVERNMENT]:
will make a recom-
Government
the—the
Honor,
Your
the Government does not be-
regarding the sen-
to the Court
mendation
*4
period
that a
of incarceration is cur-
lieve
ease; although,
in this
imposed
tence to be
rently required for the
The—-
Defendant.
that
a non-
that
is
agreement
the
indicates
the
of the Government would be for
desire
The Govern-
binding recommendation.
employment
to obtain
that
this individual
that a
recommending in this case
ment is
ability
in his
to earn income
would result
imposed and
imprisonment not be
term of
then
to the victims of
that could be
sent
period of incarcera-
that
that a
the—rather
this crime. The Government believes this
imposed but that
tion of six months be
his victims
are—were
is a crime to
who
that the Defendant be
suspended
be
money
many years.
expecting this
So
peri-
supervised probation for a
placed on
ask that
the Government would
during which time he
years
of five
od
of im-
to the
that a term
any
support arrearages
make
a—suspend-
prisonment
imposed
be
but in
by the
payments
are ordered
five-year period
of a
ed
the course
Court____
probation.
of
any
provi-
there
other
THE COURT: Are
Transcript
Sentencing Hearing at 10-11.
of
plea agreement?
sions
the
rejected
Ultimately,-
govern-
the court
There—there—
GOVERNMENT]:
[THE
sentenced Mi-
ment’s recommendation and
agree-
plea
that are in the
there are others
months,
imprisonment for six
res-
chelsen to
Honor,
ment,
I think
are
Your
but
those
$89,420.64,
titution in the amount of
and a
points.
main
special assessment of ten
After im-
dollars.
your understanding,
THE
Is that
COURT:
sentence,
posing
the court made the follow-
Michelsen,
regard
Mr.
with
ing statement:
agreement?
Michelsen, you’re
THE COURT: Mr.
ad-
you may appeal this sentence
vised that
Yes, Your Honor.
MR. MICHELSEN:
days
judg-
filing
within ten
after the
THE
You understand
COURT:
probably
That will
ment
this matter.
going make a recommen-
Government is
happen
day or so. When
within the next
regards
in this matter with
to the
dation
days
you
is
will have ten
filed
will not
sentence but
recommendation
judges
appeal that sentence to one of the
Do
un-
binding
the Court?
of the United States District Court.
that?
derstand
Transcript
Sentencing Hearing
at 20. The
that,
I understand
MR. MICHELSEN:
objection to this state-
government made no
Your Honor.
judgment
ment at the time. The written
reject
That I can
that and
THE COURT:
following provision:
contained the
maxi-
impose—theoretically impose the
sentence,
Following
imposition
imposed,
punishment that could be
mum
of his
court advised
you?
previously
indicated to
provisions
appeal pursuant
to the
of Fed.
provisions of 18
Ultimately
your
it’s
R.Crim.P. 32 and the
MR. MICHELSEN:
3742(a)
that such Notice of
to make.
decision
plea agreement contains a
that his written
be filed with the clerk of
Appeal must
(10)
express
clear and
waiver of the
days of this date.
court within ten
appeal both his conviction and his sentence.
Michelsen, No.
Harry Lee
review, therefore,
Our
is limited to whether
1997)
(D.Neb.
May
Judg-
8:96CR129-1
by
Miehelsen’s decision to bind himself
(Statement of Reasons for Sen-
ment at 6
provisions
agreement
knowing
of this
tence).
voluntary.
See
F.2d
court,
district
Michel-
In his
to the
surrounding
We look
circumstances
constitutionality of
challenged
sen
both the
entry
signing
Support Recovery Act and the
the Child
willfully
to determine whether the defendant
magistrate judge.
imposed
Wyrick,
agreed to its terms. See Lindner v.
merits,
addressing
than
the dis-
Rather
(8th Cir.1981) (“Voluntari-
granted
government’s
motion
trict court
ness is determined
factors
the time of
prejudice, holding
to dismiss the
with
plea.”).
Such circumstances
include
validly
appel-
that Michelsen had
waived
experience
background,
“the
and conduct of
Opinion and
rights.
late
See Memorandum
Davis,
the accused.” United States v.
(D.Neb.
21,1997).
July
Michel-
Order at 2-3
Cir.1992)
(citing
F.2d
Johnson
from
court’s
sen now seeks relief
the district
Zerbst,
458, 464,
304 U.S.
S.Ct.
order of dismissal.
(1938)).
1023,
States
Portillo,
adopt
reasoning
of Buchan-
we decline to
Cir.1992);
Davis,
Any
by the court at the sen-
Cir.1994);
an.
statement
290, 292-93
18 F.3d
hearing
not have affected Mi-
tencing
could
186;
at
but see United States
954 F.2d
decision,
nearly
made
three months
chelsen’s
(11th Cir.1993)
Bushert,
earlier,
plead guilty
appel-
waive his
circumstances, for
in most
(concluding that
Melancon,
rights.
late
United States v.
See
knowing
to be
appeal waiver
(fact
(5th Cir.1992)
that,
F.2d
specifical-
voluntary,
must have
district court
pur-
pled guilty
four months after defendant
ly
appeal waiver with de-
discussed sentence
ap-
agreement waiving
suant to
his
hearing).
during Rule
fendant
peal,
told him at
that he had
court
his conviction and sentence
that Miehel
The record establishes
did not allow defendant to
and did
sen,
fifty shortly after his sen
who turned
waiver was vol-
affect determination
tencing,
competent,
high
articulate
school
is
untary,
permissible). Miehel-
knowing, and
service,
military
managerial
graduate with
apparent
sen’s
later belief—based
sector,
private
prior
in
experience
events that occurred after his sentence was
justice system.
experience in the criminal
escape
imposed—that might
he
be allowed
attorney
negotiated
agree
of choice
His
commitments,
to our
from his
is irrelevant
gave his
ment to which Michelsen
assent.
Lindner,
present
at
inquiry. See
attorney possessed
copy
Michelsen and his
(court
looks to circumstances surround-
signed agreement
plea hearing.
ing signing
entry
hearing
at the
indi
Michelsen’s statements
willfully
determine whether
fully
finality
he
cate that
understood the
terms).
agreed to its
plead guilty
his decision to
complete
with
agreement was
accordance
Moreover,
admonition
was,
fact,
prior understanding;
“may appeal
court that Michelsen
this sen
agreed.
light
bargain
to which he had
days
filing
within
tence
ten
after the
*6
circumstances,
conclude that Mi
of these
we
matter,”
in
inaccu
judgment
was not an
appellate
chelsen’s decision to waive his
wholly
rate statement nor
inconsistent with
rights
knowing
voluntary.
Notwithstanding
Michelsen’s waiver.
his
waiver,
implicitly
Michelsen nevertheless
Next,
that
Michelsen contends
preserved
right
appeal
grounds
to
on
magistrate judge’s statement at the sentenc
illegal
imposed in viola
his sentence was
ing hearing indicating that Michelsen had the
Rutan,
plea agreement.
tion of the
See
956
right
appeal,
language
well as similar
829-30;
Baramdy
at
v.
F.2d
States
judgment,
(9th
contained in the written
should
840,
Cir.1996),
ka,
843
cert.
95 F.3d
—
argu
In
negate the waiver.
of this
denied,
-,
1282,
U.S.
117 S.Ct.
137
ment,
(1997).3
v.
Michelsen relies on United States
By informing
L.Ed.2d 357
Michel-
Buchanan,
held,
in
the Ninth
which
Circuit
statutory right
appeal,
to file an
sen of the
these,
in circumstances somewhat similar to
simply
duty
its
complying
the court was
with
32(e)(5).
pronouncement
that the district court’s oral
Fed.R.Crim.P.
In
do so. See
control,
right
appeal
rendering
event,
any
of a
should
court’s
of Miehel
recitation
appellate rights
statutory
unilaterally
the defendant’s waiver
sen’s
could not
(9th
914,
unenforceable. 59 F.3d
917-18
Cir.
revoke the earlier waiver to which Michelsen
1995).
agreed.4
had
Rutan,
constitutionally impermissible
based
a
fac-
3. As we observed in
waiver of the
as race.
tor such
appeal
prevent
one's sentence "would not
an
imposed
where the sentence
is not
government's
object
4. The
failure
negotiated
agreement.”
accordance with
sentencing hearing
court’s statement at the
does
prevent
it
873
government
is
for a lenient sentence. See
asserts that he
Finally, Miehelsen
Wenger,
appel
im
at
A
appeal because the sentence
58 F.3d
282. waiver of
entitled
judge
from
great
differed
posed
rights
late
can be of
value to an ac
under
negotiated
gaining
the sentence
cused as a means of
concessions from
utterly with
argument
This
is
agreement.
government,
plea agreements
and thus
plead guilty
agreed
Miehelsen
out merit.
including
strongly sup
are
such waivers
exchange
appellate rights in
and waive
Rutan,
ported by public policy. See
956 F.2d
of a
government’s recommendation
for the
829;
Littlefield,
105 F.3d
agree
The
suspended six-month sentence.
—
(9th Cir.),
denied,
cert.
U.S.
government’s
that the
rec
ment also stated
(1997)
-,
S.Ct.
L.Ed.2d 186
binding on the
not be
ommendation would
(‘We
J.,
(Hall,
concurring)
repeatedly
have
above,
expressly
As shown
Miehelsen
court.
public policy strongly supports
noted
acknowledged at his
unequivocally
plea agreements
an
waiv-
include
much and that
hearing that he understood as
er.”).
reject
authority to
the court had the
impose
maximum
recommendation
value,
preserve
order to
their
sentence.
proper
waivers must be
their
such
accorded
honored its commitment
The
829;
effect. See
956 F.2d at
His
any period of
duly recommended that
Law,
379; Margalli-Olvera
85 F.3d at
suspended. The sentence
be
incarceration
Serv.,
Immigration and Naturalization
ultimately imposed, although inconsistent
(8th
Cir.1994);
United States v.
F.3d
recommendation, did
government’s
with the
Cir.1993).
(8th
Womack,
985 F.2d
plea agreement, nor did it run
not violate the
“Empty promises
promises; if
are worthless
professed understand-
counter to Miehelsen’s
(the
could retract
their
defendants
waivers
ing
agreement.
of that
See United
effect,
practical
procedural
if
hurdles to
Cir.1996)
1080, 1081
Greger, 98 F.3d
high) then
an effective waiver were set too
long
is not
(holding that so
as sentence
they
by promis
not obtain concessions
could
negotiated plea agreement,
conflict with
appeal.” Wenger,
ing not to
voluntary waiver of
knowing and
government granted Miehelsen sentenc
enforced);
Hol-
appeal from sentence will
in return for an assurance
concessions
States,
257, 260
lis v. United
expend
required
not be
Cir.1982)
is
(holding that where defendant
preserve
resources to
valuable time and
solely
rests
informed that
decision
finality
judgment
sentence. To
sentencing court and defen-
in discretion of
bargained-
to attack that
permit Miehelsen
*7
much,
states that he understands
dant
finality
one of the
for
would be to eliminate
involuntary);
plea will not be set aside as
for
primary
government
incentives the
has
(same).
Lindner,
to one of the
District Court.
Id. at 20. object. prosecution
The did magistrate judge’s state- light concerning the reasons for the sen-
ments tence, contrary to the recom- which were BURRESS, Plaintiff-Appellant, Gwen prosecutor, I believe the mendation direction, judge, by his oral magistrate object, recog- by failing to prosecutor, APFEL, Kenneth S. Commissioner should have the nized that the defendant Security, of Social Defendant- appeal in this unusual case. right to an Appellee. situation, analogous the Ninth Cir In an No. 97-3750. Buchanan, cuit, in United States denied, Cir.), 516 U.S. cert. Appeals, Court of (1995), has 133 L.Ed.2d S.Ct. Eighth Circuit. orally court recognized that where district at a defendant of advises 10, 1998. Submitted March acknowl- by failing object, the edges April Decided appeal. That court reasoned: defendant can
Litigants to be able to trust need pronouncements of court
oral district judge’s
judges. the district court Given sentencing, the defen-
clear statements understanding, and the
dant’s assertion object,
prosecution’s failure to we hold circumstances, the district court’s these pronouncement controls and the
oral is not enforceable.
agreement waiver
Id. majority here states the might
judge’s that Michelsen “admonition” to an inaccu-
appeal his sentence amounted wholly and one not incon-
rate statement However, the waiver.
sistent with *9 clearly precise-
magistrate judge twice
ly that he could advised Michelsen magistrate judge’s
I do not construe the tongue slips or misstate-
statements