USA v. Wallace Carson

Filing

Filed opinion of the court PER CURIAM. The appeal is DISMISSED. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Diane S. Sykes, Circuit Judge. [6839134-1] [6839134] [16-2694]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2694
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALLACE B. CARSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 15-CR-30149-NJR-01 — Nancy J. Rosenstengel, Judge.

____________________
ARGUED APRIL 26, 2017 — DECIDED MAY 5, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit
Judges.
PER CURIAM. Wallace Carson robbed a convenience store
by pulling a gun on the cashier. The police caught him in
short order, and he pleaded guilty to Hobbs Act robbery and
other charges. The district court sentenced Carson as an
armed career criminal, classifying as violent felonies prior
convictions for robbery and armed robbery. Carson now

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appeals, arguing that under Johnson v. United States, 559 U.S.
133 (2010), none of those crimes is a violent felony. Because
the appeal waiver in Carson’s plea agreement precludes this
argument, we dismiss the appeal.
Carson robbed a Walgreens store in 2015. He waited in
line until the cashier opened the register to make change for
the woman in front of him. He pulled a loaded, semiautomatic pistol out of his pants and held it in his right hand
while reaching across the counter and grabbing cash from
the register. Carson fled by bicycle, but witnesses told police
his direction of travel and he was quickly caught. Carson
was charged with Hobbs Act robbery, 18 U.S.C. § 1951(a);
brandishing a firearm in furtherance of a crime of violence,
id. § 924(c); and possessing a firearm as a felon, id.
§ 922(g)(1).
Carson pleaded guilty to all charges and waived his right
to appeal with limited exceptions in exchange for the government’s agreement to recommend a 3-level reduction for
acceptance of responsibility and a prison sentence of
272 months. That sentence represented the low end of the
range calculated by the parties based on a shared assumption that Carson would be sentenced as an armed career
criminal. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4. The appeal
waiver states:
[I]n exchange for the recommendations and
concessions made by the Government in this
Plea Agreement, Defendant knowingly and
voluntarily waives the right to contest any
aspect of the conviction and sentence, including the manner in which the sentence was determined or imposed, that could be contested

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under Title 18 or Title 28, or under any other
provision of federal law, except that if the sentence imposed is in excess of the Sentencing
Guidelines as determined by the Court (or any
applicable statutory minimum, whichever is
greater), Defendant reserves the right to appeal
the substantive reasonableness of the term of
imprisonment. …
Defendant’s waiver of the right to appeal or
bring collateral challenges shall not apply to:
1) claims of ineffective assistance of counsel;
2) any subsequent change in the interpretation
of the law by the United States Supreme Court
or the United States Court of Appeals for the
Seventh Circuit that is declared retroactive by
those Courts and that renders Defendant actually innocent of the charges covered herein;
and 3) appeals based upon Sentencing Guideline amendments that are made retroactive by
the United States Sentencing Commission … .
During the plea colloquy, the judge stated three times
that as an armed career criminal, Carson faced a statutory
minimum of 15 years’ imprisonment on the charge of possessing a firearm as a felon. See § 924(e). The judge also
ensured that Carson understood the rights he was waiving,
including his right to appeal.
The presentence investigation report recommended that
Carson be sentenced as an armed career criminal (a defendant with three prior convictions for serious drug offenses or
violent felonies). 18 U.S.C. § 924(e)(1). The statute defines a
violent felony as any crime punishable by more than a year

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in prison that “(i) has as an element the use, attempted use,
or threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, [or] involves
use of explosives.” Id. § 924(e)(2)(B). The presentence report
then identified four predicate convictions subjecting Carson
to the enhancement: robbery in February 1990 and
March 1991, both in Illinois; robbery in March 1992 in
Missouri; and armed robbery in November 2005 in Illinois.
Though Carson objected to other parts of the presentence
report, he did not object to his designation as an armed
career criminal. Rather, he had already stipulated in the plea
agreement that the statutory minimum for the § 922(g)(1)
charge is 15 years and that his criminal history category is
VI, which would not be true if he is not an armed career
criminal.
The judge sentenced Carson as an armed career criminal,
which changed the statutory penalties he faced on the
§ 922(g)(1) charge from a maximum of 120 months’ imprisonment to a minimum of 180 months’ imprisonment. See
§ 924(e). And under the Sentencing Guidelines, the designation also raised the recommended imprisonment range for
that charge (which was grouped with the Hobbs Act robbery
charge) from 57–71 months to 188–235 months. See U.S.S.G.
§§ 2K2.1(a)(4)(A); 4B1.4(b)(3)(A), (c)(2). The judge imposed
concurrent 188-month terms for the § 922(g)(1) and Hobbs
Act counts plus a consecutive term of 84 months for the
§ 924(c)(1) count (the statutory minimum since the gun was
brandished, see 18 U.S.C. § 924(c)(1)(A)(ii)), for a total of
272 months’ imprisonment.
On appeal Carson acknowledges the appeal waiver but
asserts that it should not be enforced. He points to United

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States v. Gibson, 356 F.3d 761 (7th Cir. 2004), which he reads
broadly for the proposition that appeal waivers are unenforceable when a defendant contends his sentence exceeds
the statutory maximum. He also cites a recent decision from
this court in which the panel disregarded an appeal waiver
to avoid a miscarriage of justice. See United States v. Litos,
847 F.3d 906, 910 (7th Cir. 2017). Carson contends that his
sentence on the § 922(g)(1) count exceeds the statutory
maximum and has caused a miscarriage of justice because,
he argues, none of his prior convictions is a violent felony.
Carson’s argument for ignoring his waiver is one we recently rejected as “entirely circular.” United States v. Worthen,
842 F.3d 552, 555 (7th Cir. 2016). The defendant in Worthen
was convicted of Hobbs Act robbery and also, based on that
offense, using or carrying a firearm during a crime of violence. Id. at 554. He appealed despite waiving that right as
part of his plea agreement; Hobbs Act robbery is not a crime
of violence, he contended, making his § 924(c)(1) conviction
and sentence illegal and the appeal waiver unenforceable. Id.
at 554–55. In refusing to disregard the appeal waiver, we
reasoned that we could not determine the lawfulness of the
defendant’s sentence without resolving his entire appeal.
That was not the situation in Gibson, we explained, because
in Gibson no analysis was necessary to understand that the
sentence imposed exceeded the statutory cap. Id. at 555; see
Gibson, 356 F.3d at 766. On the other hand, we continued, if
the very argument raised in apparent violation of an appeal
waiver must be decided on the merits in order to know
whether the sentence is unlawful (and thus the waiver is
unenforceable), we would “eviscerate the right to waive an
appeal” by creating a rule “that an appeal waiver is enforce-

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able unless the appellant would succeed on the merits of his
appeal.” Worthen, 842 F.3d at 555.
Carson does not meaningfully distinguish Worthen. Although he argues that the defendant in that case was trying
to invalidate the underlying § 924(c)(1) conviction as well as
the sentence for that crime, he does not explain why that
difference matters. Our reasoning in Worthen applies equally
to Carson’s effort to invalidate his sentence; it is not possible
to determine if Carson’s sentence as an armed career criminal is illegal (or a miscarriage of justice) without resolving
the merits of his appeal.
Neither is Carson’s situation like that in Litos. There, we
had already concluded in the appeals of his codefendants
that restitution had been imposed improperly, and we
allowed the appellant to benefit from that conclusion even
though, unlike his codefendants, he had waived his right to
appeal. See Litos, 847 F.3d at 910. All of the criminal participants were jointly and severally liable, and we reasoned that
leaving the appellant on the hook for the entire improper
amount by vacating the restitution imposed on his codefendants would constitute a miscarriage of justice. Id. But
that exceptional situation is not present here; there is no way
to resolve the merits of Carson’s appeal without pretending
that he did not bargain away the right to that relief. Carson
received the benefit of that bargain when the government
recommended a reduction of his offense level for acceptance
of responsibility and the low end of their agreed guidelines
calculation. And he does not otherwise challenge the voluntariness of his guilty pleas. Because an appeal waiver stands
or falls with a guilty plea, we therefore enforce his waiver
and dismiss this appeal. See United States v. Gonzalez,

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765 F.3d 732, 741 (7th Cir. 2014); United States v. Zitt, 714 F.3d
511, 515 (7th Cir. 2013); United States v. Sakellarion, 649 F.3d
634, 639 (7th Cir. 2011).
DISMISSED.