Appeal Waiver is Strictly Construed to Prevent Appeals

United States v. McCrary, 2022 WL 2920054 (10th Cir. July 26, 2022)(OK): Please be aware that a plea agreement’s appellate waiver probably won’t let you appeal a court’s guideline calculations or the manner in which the sentence was determined, even if it arguably was done incorrectly, unless the waiver clearly says so. McCrary pleaded guilty to possession with intent to distribute fentanyl. The sentencing court varied upward because another had died from the fentanyl McCrary indirectly distributed. It found that his post-offense rehabilitation did not substantially mitigate the aggregate circumstances of his criminal conduct. On appeal McCrary argued the court’s sentence was procedurally and substantively unreasonable. The panel held that McCrary waived his appellate arguments challenging the procedural reasonableness of his sentence. The plea agreement contained a standard appeal waiver which forbade him from appealing his “sentence as imposed by the Court . . . and the manner in which the sentence is determined . . . [if it is] within the statutory maximum for the offense to which he pleaded guilty.” The panel ruled McCrary’s procedural reasonableness arguments fell within the appeal waiver. His contention that the district court relied on clearly erroneous facts, failed to explain its sentence adequately, and erred in responding to his objections to some facts in the PSR, all challenged the“manner in which the sentence [was] determined.” The panel said its conclusion was based “on a straightforward reading of the clear language of the waiver.” The panel rejected McCrary’s argument that the substantive reasonableness of the above-guideline range imprisonment term is inextricably linked to his procedural argument that the court relied on clearly erroneous facts included in the PSR. McCrary separated the two by agreeing to the appeal waiver. The waiver distinguished between appealable substantive unreasonableness arguments and unappealable challenges to the “manner in which the sentence is determined.” The panel also was unpersuaded by McCrary’s substantive unreasonableness argument. It said a sentence is substantively unreasonable only when it is “arbitrary, capricious, whimsical, or manifestly unreasonable.” A sentence will not be unreasonable when it falls within the range of “rationally available choices that facts and the law at issue can fairly support.” The panel acknowledged that the court here chose to put more weight on the fact that McCrary distributed a “dangerous illicit drug” which resulted in another’s death than on McCrary’s post-offense rehabilitation. But that emphasis didn’t make the upward variance unreasonable because the imprisonment term imposed was not “arbitrary” or “outside the range of permissible choice.” ("Permissible choice" being the statutory maximum of 20 years.) Besides, the panel noted, other circuits have upheld as substantively reasonable sentences in which district courts varied upward based on the “dangerousness of the fentanyl that a defendant distributed.”

Sex Offender Guideline Loss

United States v. Cifeuntes-Lopez, 2002 WL 2920055 (10th Cir. July 26, 2022) (OK): The panel finds that the repeat sex offender pattern of activity enhancement in USSG § 4B1.5(b)(1) can be applied to either repeated abuse of a single minor or to separate abuses of multiple minors. In other words, where, like in this case, two minors were abused only once, the enhancement still applies. The panel also finds that applying § 4B1.5(b)(1)’s five level patterns of activity with the grouping section’s two level multiple count enhancement under § 3D1.4 is not double counting. First, the guidelines expressly intended cumulative application. Section 4B1.5(b)(1) says the five levels must be added to the offense level determined under Chapters Two and Three. Second, the enhancements serve different sentencing goals. The panel said § 4B1.5 protects minors from sex offenders who present a continuing danger to the public. In contrast, § 3D1.4 provides “incremental punishment for significant additional criminal conduct.”