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United States v. Floyd

United States Court of Appeals, Eighth Circuit

July 25, 2019

United States of America Plaintiff - Appellee
v.
Marcus Floyd Defendant-Appellant

          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). ...


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