Submitted: April 15, 2019
Appeal
from United States District Court for the Western District of
Arkansas - Texarkana
Before
LOKEN, WOLLMAN, and STRAS, Circuit Judges.
LOKEN,
CIRCUIT JUDGE.
Marcus
Floyd pleaded guilty in March 2014 to one count of possession
of methamphetamine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1). As relevant here, Paragraph 7 of
the Plea Agreement provided that Floyd:
knowingly and voluntarily agrees and understands the
following appellate and post-conviction terms of this
agreement:
a. the defendant waives the right to directly appeal the
conviction and sentence pursuant to 28 U.S.C. § 1291
and/or 18 U.S.C. § 3742(a);
b. the defendant reserves the right to appeal from a sentence
which exceeds the statutory maximum;
d. the defendant waives the right to collaterally attack the
conviction and sentence pursuant to 28 U.S.C. § 2255,
except for claims based on Ineffective assistance of counsel
which challenge the validity of the guilty plea or this
waiver.
At
sentencing, the district court[1] determined that Floyd's
advisory guidelines sentencing range was 151 to 188 months in
prison. Varying downwards, the court imposed a 140-month
sentence. Floyd did not appeal the conviction or sentence.
In
February 2015, Floyd filed a pro se motion to vacate
the sentence under 28 U.S.C. § 2255, alleging, inter
alia, ineffective assistance of counsel when his
attorney failed to appeal the original judgment as Floyd
directed. Floyd's trial counsel passed away before a
scheduled evidentiary hearing on this claim. In February
2018, the district court concluded that an evidentiary
hearing without counsel present "would waste judicial
resources," granted the § 2255 motion on the ground
that trial counsel "failed to file a notice of appeal as
directed," and ordered that Floyd "be resentenced
so as to allow him the opportunity to file a timely notice of
appeal."
At the
May 2018 resentencing, the district court noted that,
"when a defendant has been unconstitutionally deprived
of an appellate review due to defense counsel's failure
to file an appeal, the prescribed remedy is for the court to
vacate the defendant's sentence and then reimpose it,
allowing him to appeal the new sentence." See United
States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000).
Accordingly, the district court declined to consider new
objections to the initial Presentence Investigation Report,
denied Floyd's request for de novo resentencing,
and reimposed the original 140-month sentence, concluding it
was appropriate in light of the 18 U.S.C. § 3553(a)
factors considered at the original sentencing hearing. Floyd
appeals, arguing the district court abused its discretion by
denying his request for de novo resentencing. We
conclude that Floyd's appeal waivers control this issue
and dismiss the appeal.
"As
a general rule, a defendant is allowed to waive appellate
rights," United States v. Andis, 333 F.3d 886,
889 (8th Cir. 2003) (en banc), which includes the right to
waive "section 2255 collateral-attack rights."
DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.
2000). When reviewing a claim of appeal waiver, "we must
confirm that the [issue raised on] appeal falls within the
scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily. Even
when these conditions are met, however, we will not enforce a
waiver where to do so would result in a miscarriage of
justice." Andis, 333 F.3d at 889-90; see
United States v. Fonseca, 790 F.3d 852, 853-54 (8th Cir.
2015).
In this
case, Floyd waived the right to directly appeal but
"reserve[d] the right to appeal from a sentence which
exceeds the statutory maximum," and he waived the right
to collaterally attack the conviction and sentence
"except for claims based on Ineffective assistance of
counsel which challenge the validity of the guilty plea
or this waiver." Plea Agreement par. 7 (emphasis
added). ...