Summary
holding that there was no plain error when the district court's reasons for a sentence were implicit in the colloquy with defense counsel, notwithstanding failure to comply with technical requirements of 18 U.S.C. § 3553
Summary of this case from U.S. v. DunbarOpinion
No. 98-10095
Argued and Submitted January 14, 1999 — San Francisco, California
Decided February 26, 1999
Mark W. Coleman, Fresno, California, for the defendant-appellant.
Kevin P. Rooney, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, District Judge, Presiding D.C. No. CR F-96-5332-REC.
Opinion by Judge Noonan
SUMMARY
OPINION
[3] Jorge Vences appeals his sentence for violation of 21 U.S.C. § 841(a)(1). We dismiss the appeal for lack of jurisdiction.PROCEEDINGS
On October 15, 1997 Vences entered into a plea agreement by which he agreed to plead guilty to possession with the intent to distribute 28 packages containing approximately 29 kilograms of cocaine. He acknowledged that the maximum potential sentence was life imprisonment. He waived each of his constitutional rights as to a trial. The plea agreement further stated: "The defendant expressly waives his right to appeal and to collaterally attack any matter in connection with this prosecution. This agreement does not, however, prevent the defendant from appealing his sentence based on a claim of illegality."
At the sentencing hearing on February 9, 1998, counsel for Vences asked the court to disregard two past DUI convictions and sentence Vences on the basis of a Criminal History Category of I rather than the Category of III recommended by the Probation Office in its Presentence Report. The court refused, noting that the Probation Office had already disregarded two offenses and also disregarded the purity of the cocaine as a basis for upward departure. The government added:"the purity involved is indicative of one who is at a high level in a narcotic trafficking organization. The Probation Officer originally contemplated departing upward based on the purity, but in light of the circumstances, I believe that the way the Probation Officer has calculated the offense level is appropriate." The court stated: "Yes, I am satisfied it is properly calculated." The court called for further comment from defense counsel, who, after further argument, said:"If the court is not going to consider that his prior criminal history is overstated, I would ask for a sentence at the low end of the guideline range. . . ." The court noted that the government had recommended the middle of the range.
The court imposed a sentence of 14 years and 1 month, followed by a term of supervised release of 5 years. The court informed the defendant that he had waived his right to appeal but "still ha[d] the right to appeal any sentence that is greater than that authorized by the statute." The court then asked, "Any other matters that should be taken care of?" Both counsel replied no.
In the Judgment later signed by the court the court failed to explain the "reasons for imposing the sentence," as required by 18 U.S.C. § 3553. Vences now appeals his sentence, arguing this failure constitutes error.
ANALYSIS
Vences contends that this court has jurisdiction to hear his appeal because, while he generally waived his right to appeal in the plea agreement, he preserved the right to appeal an "illegal sentence." He further argues that, in this case, his sentence is illegal because the court did not express the reasons for the sentence as required by 18 U.S.C. § 3553(c). This statute states:
The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence —
(1) is of the kind, and within the range, described in subsection (a)(4) and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; . . . ."
The court did not comply with the statute. The relevant question is whether this issue is properly before us on appeal. We hold that it is not, for two reasons.
[1] First. Vences forfeited the objection when it was not made to the district court. Review is therefore for plain error, and plain error does not require us to take notice of it. United States v. Olano, 507 U.S. 725 (1993). Plain error is found only where there is "(1) error, (2) that was clear or obviously, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Randall, 162 F.3d 557, 561 (citing Olano, 507 U.S. at 732-36). In this case, while the district court failed to comply with the technical requirements of § 3553, the court's reasons were implicit in the colloquy the court had conducted with counsel. It would be a meaningless formality to remand the case for the court to articulate the reasons.
[2] Even more fundamentally, this court lacks jurisdiction because the district court's failure to comply with § 3553 did not make Vences' sentence "illegal," and Vences waived the right to appeal anything except an illegal sentence. Vences argues that any violation of the statutory requirements renders a sentence "illegal." But the phrase "illegal sentence" has a precise legal meaning. An illegal sentence is one "not authorized by the judgment of conviction" or "in excess of the permissible statutory penalty for the crime." United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987). Here the sentence was not illegal because the sentence was authorized by the judgment of conviction and did not impose on Vences a sentence in excess of the statutory penalty. It would overreach our jurisdiction to entertain an appeal when the plea agreement effectively deprived us of jurisdiction. United States v. Yemitan, 70 F.3d 746, 747-48 (2d Cir. 1995).
DISMISSED for lack of jurisdiction.
Criminal Law and Procedure/Sentencing
The court of appeals dismissed an appeal for lack of jurisdiction. The court held that a federal sentence is not rendered "illegal" because the district court fails to state the reasons for it, as required by 18 U.S.C. § 3553(c).
When sentencing appellant Jorge Vences for controlled substance offenses, the district court informed Vences that he had waived his right to appeal in his plea agreement, but still had the right to appeal from any sentence that was greater than that authorized by statute. In a colloquy with counsel, the court noted that the government had requested a sentence in the middle of the guideline range.
The district court sentenced Vences to a term of imprisonment followed by a term of supervised release. However, in the ensuing judgment the court did not explain the reasons for imposing the sentence, as required by § 3553(c). Vences did not object.
On appeal, Vences contended that the court of appeals had jurisdiction because he had preserved his right to appeal from an "illegal" sentence.
[1] Vences forfeited the objection when it was not made to the district court. Review was therefore for plain error. Plain error is found only when there is (1) error, (2) that was clear or obvious, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. While the district court failed to comply with the requirements of § 3553(c), the court's reasons were implicit in the colloquy with counsel. It would have been a meaningless formality to remand the case for the court to state its reasons.
[2] More fundamentally, the court of appeals lacked jurisdiction because the district court's failure to comply with § 3553(c) did not make Vences' sentence "illegal," and Vences waived the right to appeal anything except an illegal sentence. An illegal sentence is one not authorized by the judgment of conviction, or in excess of the permissible statutory penalty for the crime. In this case, the sentence was not illegal because it was authorized by the judgment of conviction, and did not impose a sentence in excess of the statutory penalty. The plea agreement effectively deprived the court of appeals of jurisdiction.