UNITED STATES оf America, Appellee v. Mark-Anthony Elisha ADAMS, Appellant.
No. 13-3020.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 9, 2015. Decided March 20, 2015.
1182-1184
Deborah A. Persicо argued the cause for appellant. On the brief was Joseph Virgilio.
Peter S. Smith, Assistant U.S. Attorney, argued the cause for appеllee. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney, and Elizabeth Trosman,
Befоre: TATEL and MILLETT, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge GINSBURG.
GINSBURG, Senior Circuit Judge:
Mark-Anthony Elisha Adams appeals the sentence impоsed by the district court after he pleaded guilty to conspiracy to commit wire and mail fraud. We dismiss the appeal because, in his plea agreement, Adams waived his right to appeal.
I. Background
A grand jury indicted Adams for having devised and carried out a scheme tо defraud the United States Agency for International Development. Adams agreed to plead guilty to one count of consрiracy to commit wire and mail fraud in return for which the Government would move to dismiss the other 21 counts in the indictment. The agreement explained the sentence would be determined by the court and the range indicated by the United States Sentencing Guidelines was 51 to 63 months imрrisonment. The parties further “agree[d] that a sentence within the applicable Guidelines Range ... would constitute a reasоnable sentence,” and that Adams
waive[d] the right to appeal his sentence or the manner in which it was determined pursuant to
18 U.S.C. § 3742 , except to the extent that (a) the Court sentences [Adams] to a period of imprisonment longer than the statutory maximum, or (b) the Court departs upward from the applicable Sentencing Guideline range pursuant to the provisions of U.S.S.G. § 5K2.1 or based on a consider-ation of the sentencing factors set forth in18 U.S.C. § 3553(a) .
After Adams pleaded guilty the district court sentenced him to the minimum Guidelines term of 51 months imрrisonment and to three years of supervised release, and ordered him to pay restitution.
II. Analysis
Adams argues the district court erred in three respects. First, he contends the court erred by denying his motion to delay sentencing, filed two days before his sentencing hearing, until twо doctors determined whether Adams would benefit from simultaneous organ transplants. Adams claims the information provided by the doctors would have aided the court in deciding whether any time in prison was warranted in light of Adams‘s ill health. Second, Adams argues the court erred during the sentencing hearing by cutting short his cross-examination of the Government‘s witness, who testified about the medical care Adams would receive in prison. Third, Adams argues his sentence is substantively unreasonable. We do not consider any of these arguments because Adams waived his “right to appeal his sentence or the manner in which it was determined pursuant to
A “knowing, intelligent, and voluntary” waiver of thе right to appeal “generally may be enforced.” United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009). We will not enforce a waiver, however, if “the defendant makes a colorable claim he received ineffective assistance of counsel in agreeing to the waiver” or “if the sentencing court‘s failure in some material way to follow a prescribed sentencing procedure results in a miscarriage of justice.” Id. at 530-31. The latter exception applies if, for example, “the district court utterly fails to advert to the factors in
Adams relies upon the “miscarriage of justice” exception to arguе that we should refuse to enforce the waiver, but he has neither claimed nor shown that any of the examples identified in Guillen, nor any comparably serious procedural failure, infects this case. Instead, Adams takes issue with the way in which the district judge exercised her discretion in deciding what evidence was relevant to the determination of his sentence. Specifically, he argues the distriсt court should have postponed sentencing while he gathered additional medical evidence and should have allowеd him more leeway to cross-examine the Government‘s witness during the sentencing hearing. As other courts have explained, howevеr, “an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion is not subject to appeal in the face of a valid appeal waiver.” United States v. Andis, 333 F.3d 886, 892 (8th Cir.2003) (en banc). Accordingly, when Adams waived his right to appeal “his sentence or the manner in which it was determined pursuant to
Viewed ex ante, not even Adams would want this case decided as he argues it ex post. As we have observed before, “[a]llоwing a defendant to waive the right to appeal his sentence ... gives him an additional bargaining chip to use in negotiating a plеa agreement with the Government.” Guillen, 561 F.3d at 530. If the Government cannot count upon the waiver being enforced in the mine run of cases—thоse in which enforcing it would not work a miscarriage of justice—then waiver will lose its value as a “bargaining chip” for a defendant. Fоr this reason, “the miscarriage of justice exception is a very narrow exception to the general rule that waivers of appellate rights are enforceable.” United States v. Blue Coat, 340 F.3d 539, 542 (8th Cir.2003).
III. Conclusion
Adams waived his right to appeal a sentence within the Guidelines range. The waiver is enforceable because he “has not shown that the district court worked a miscarriage of justice by failing to follow an essential procedure or relied upon a constitutionally impermissible factor.” Guillen, 561 F.3d at 532. Adams‘s appeal is, therefore,
Dismissed.