USA v. Mark-Anthony Adam

Filing

OPINION filed [1543386] (Pages: 5) for the Court by Judge Ginsburg. [13-3020]

USCA Case #13-3020

Document #1543386

Filed: 03/20/2015

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2015

Decided March 20, 2015
No. 13-3020

UNITED STATES OF AMERICA,
APPELLEE
v.
MARK-ANTHONY ELISHA ADAMS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00093-1)

Deborah A. Persico argued the cause for appellant. On
the brief was Joseph Virgilio.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen,
Jr., U.S. Attorney, and Elizabeth Trosman, Elizabeth H.
Danello, and Jonathan P. Hooks, Assistant U.S. Attorneys.
Before: TATEL and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.

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GINSBURG, Senior Circuit Judge: Mark-Anthony Elisha
Adams appeals the sentence imposed 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 to defraud the United States Agency for
International Development. Adams agreed to plead guilty to
one count of conspiracy 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 imprisonment. The parties further “agree[d] that
a sentence within the applicable Guidelines Range ... would
constitute a reasonable 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. § 5K.2 or
based on a consideration of the sentencing factors set
forth in 18 U.S.C. § 3553(a).
After Adams pleaded guilty the district court sentenced him to
the minimum Guidelines term of 51 months imprisonment
and to three years of supervised release, and ordered him to
pay restitution.

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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 two 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 crossexamination 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 18 U.S.C. § 3742.”
A “knowing, intelligent, and voluntary” waiver of the
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 18 U.S.C. § 3553(a),”
the sentence exceeds the statutory maximum, or the sentence
is “colorably alleged to rest upon a constitutionally
impermissible factor, such as the defendant’s race or
religion.” Id. at 531.
Adams relies upon the “miscarriage of justice” exception
to argue that we should refuse to enforce the waiver, but he

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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 district court should
have postponed sentencing while he gathered additional
medical evidence and should have allowed him more leeway
to cross-examine the Government’s witness during the
sentencing hearing. As other courts have explained, however,
“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 18 U.S.C. § 3742,” he agreed to forgo both the procedural
and the substantive challenges that he now seeks to press on
appeal. See 18 U.S.C. § 3742(a)(1) (authorizing appeals of
sentences “imposed in violation of law”); see also United
States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011)
(“While [the defendant’s] appeal waiver did not relieve the
District Court of its responsibility to follow the procedural
requirements related to the imposition of a sentence, the
appeal waiver does preclude this Court from correcting the
errors alleged to have occurred”); United States v. Soto-Cruz,
449 F.3d 258, 261 (1st Cir. 2006) (rejecting the appellant’s
argument that “enforcement of the appeal waiver would work
a miscarriage of justice because the district court denied his
request to present, in a closed hearing, mitigation evidence
and evidence of his background” before the court imposed the
sentence).
Viewed ex ante, not even Adams would want this case
decided as he argues it ex post. As we have observed before,

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“[a]llowing a defendant to waive the right to appeal his
sentence ... gives him an additional bargaining chip to use in
negotiating a plea 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 — those in
which enforcing it would not work a miscarriage of justice —
then waiver will lose its value as a “bargaining chip” for a
defendant. For 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.

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