IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
August 18, 1997
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
MARCIA G. WOOLLEY, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Central District of Illinois, Rock Island Division. No. 95 CR 40029 Michael M. Mihm, Chief Judge.
Before COFFEY, KANNE and ROVNER, Circuit Judges.
COFFEY, Circuit Judge.
ARGUED APRIL 22, 1997
DECIDED AUGUST 18, 1997
Defendant-appellant Marcia Woolley was charged with one count of aiding and abetting a felon in obtaining a firearm, in violation of 18 U.S.C. sec.sec. 2, 922(g)(1). The indictment charged that, on or about January 21, 1995, Woolley assisted her husband Martin, a convicted felon, in purchasing a handgun in Henry County, Illinois. Thereafter, on November 3, 1995, Woolley, represented by counsel, pled guilty to the charge in the indictment pursuant to a written plea agreement. Under the terms of the plea agreement, the Government reserved the right to request, and in fact did request, an upward departure in Woolley's sentence. With an upward departure, Woolley could have received up to the statutory maximum of 120 months. At the sentencing hearing, the judge granted the Government's request and departed upward, sentencing the defendant to a term of ninety-six months.
The plea agreement also contained a sentence appeal waiver, as well as a waiver of rights under 42 U.S.C. sec. 2255. Notwithstanding this waiver, Woolley has filed an appeal, in which she challenges the upward departure and argues that she received ineffective assistance of counsel. The Government in response filed a motion to dismiss the appeal based on the sentence appeal waiver. *fn1 We dismiss the appeal.
I. FACTUAL BACKGROUND *fn2
Woolley and her husband Martin owned a tattoo shop in Kewanee, Illinois. On January 20, 1995, Marcia asked James Rodgers (Rodgers), a friend of hers, if he would purchase a handgun for the Woolleys, stating that she and Martin needed a gun for protection both at the tattoo shop and at home. *fn3 As a matter of fact, Marcia Woolley admitted in a taped discussion with Illinois authorities that the real reason the Woolleys wanted to purchase a gun was to facilitate their purchase and transportation of drugs from Florida to Illinois for resale. Rodgers agreed to purchase the handgun for the Woolleys, and the three of them went to a local gun shop the next day. Martin Woolley picked out a handgun and ammunition, and Marcia paid for them with cash.
A few weeks later, on February 20, 1995, Marcia and Martin spent a large portion of the day drinking at "Phylly's Cue and Brew," a bar located in Kewanee. At approximately 10:00 p.m., after all of the patrons had departed except for the Woolleys and two employees, a bartender and a waitress, Martin, who was carrying the handgun in his pants, opened fire, shooting and killing both the bartender and waitress. Thereafter, Martin went behind the bar, emptied the cash register, took two bags of money from a cabinet beneath the bar, exited the tavern and returned with his wife to their Kewanee home. Martin hid the money in a wall in their house, and dropped the gun in a freezer located in a garage a few houses away. Early the next morning, the police arrived and inquired of both Martin and Marcia whether they knew anything about the murders, and both denied any knowledge. Later that afternoon, Marcia and Martin were taken to the Kewanee Police Department for questioning, at which time Marcia stated that Martin had committed the murders. She denied knowing in advance of his plans to rob Phylly's and fatally shoot the two people. Martin later confessed to the murders, and Marcia admitted, in a taped statement, that she knew at the time they purchased the gun that Martin was a convicted felon and was thus barred from legally owning a handgun.
Martin Woolley was charged with and convicted of two counts of murder for the killing of the bartender and waitress. He was sentenced to death for the double homicide. *fn4 Marcia Woolley was charged by Illinois authorities with obstruction of justice, based on her false statements to Kewanee police officers concerning her alleged lack of knowledge about the killings. She pled guilty, served approximately three months of an eighteen-month sentence, and was released from custody, only to be re-arrested for the crime referred to herein. *fn5
Assisted by counsel, Marcia entered into a written plea agreement which specifically provided in part that the Government would have the right to seek an upward departure in Marcia's sentence, *fn6 and also allowed Woolley to seek a downward departure. The plea agreement also contained the aforementioned waiver of Marcia's right to appeal her sentence. The appeal waiver read as follows:
A. The defendant fully understands that Section 3742 of Title 18 of the United States Code provides for appeal by a defendant of a sentence under certain circumstances, and further that she may give up or waive this right to appeal her sentence as a term of this plea agreement.
B. Knowing this, the defendant hereby waives any and all rights conferred by 18 U.S.C. sec. 3742 to appeal her sentence on any grounds, including the manner in which the court applies the United States Sentencing Guidelines and Policy Statements in determining her sentence.
C. The defendant further fully understands that Section 2255 of Title 28 of the United States Code and related laws provide for the challenge by a defendant of her conviction and sentence under certain circumstances, and further that she may give up or waive this right to challenge her conviction and sentence as a term of this plea agreement.
D. Knowing this, the defendant hereby waives any and all rights conferred by 28 U.S.C. sec. 2255 and related laws to challenge her conviction and sentence on any grounds in any post-conviction proceedings. App.B, p.10.
The probation officer in the PSR calculated Woolley's Adjusted Offense Level at fifteen and found her Criminal History Category to be III; thus, her Guideline sentence range was twenty-four to thirty months. At sentencing, the Government moved for an upward departure from the Guideline sentence range to the statutory maximum of 120 months, based on sec. 5K2.1 of the Guidelines, which states that an upward departure is appropriate if death results from the commission of the offense. The defendant's counsel sought a downward departure, arguing that Marcia Woolley had been coerced by Martin into assisting him in obtaining the handgun. The trial judge, after reviewing the PSR and hearing the evidence presented at the sentencing hearing, denied the defendant's request for a downward departure and agreed with the Government that an upward departure was in order. The judge sentenced Woolley to a term of ninety-six months.
Woolley's appellate brief raises five issues challenging her sentence (the plea colloquy whereby the district court accepted her guilty plea) and alleging that her trial counsel provided ineffective assistance. Initially, we address the Government's motion to dismiss this appeal based upon the waiver of appeal rights Woolley agreed to and signed as part of her written plea agreement. Since we hold that the appeal waiver is valid, there is no need to address the merits of Woolley's sentencing claims.
The Government has moved to dismiss Woolley's appeal, arguing that, as part of her written plea agreement, she waived her right to appeal. It is well-settled in this Circuit, as well as in virtually every circuit that has considered the question, *fn7 that defendants may waive their right to appeal as part of a written plea agreement, and we have consistently upheld valid appeal waivers and dismissed the appeals taken in contravention. See United States v. Feichtinger, 105 F.3d 1188 (7th Cir.), cert. denied, 1997 WL 275135 (June 16, 1997); United States v. Ogden, 102 F.3d 887 (7th Cir. 1996); United States v. Wenger, 58 F.3d 280 (7th Cir.), cert. denied, 116 S.Ct. 349 (1995); United States v. Schmidt, 47 F.3d 188 (7th Cir. 1995). *fn8 Indeed, "the right to appeal is a statutory right, and like other rights--even constitutional rights--which a defendant may waive, it can be waived in a plea agreement." Feichtinger, 105 F.3d at 1190. For an appeal waiver to be valid, it "must be express and unambiguous," United States v. Hendrickson, 22 F.3d 170, 174 (7th Cir. 1994), and the record must clearly demonstrate that it was "made knowingly and voluntarily." United States v. Agee, 83 F.3d 882, 885 (7th Cir. 1996) (citing Wenger); Schmidt, 47 F.3d at 190. Finally, a waiver of the right to appeal does not completely foreclose review of a sentence under all circumstances. As we observed in Schmidt, notwithstanding a valid appeal waiver, "a defendant could appeal his sentence if the trial court relied on a constitutionally impermissible factor[.]" 47 F.3d at 190; see also Feichtinger, 105 F.3d at 1190. To determine whether the defendant's appeal waiver is valid, we look to the content and the language of the plea agreement itself and refer to the colloquy between the defendant and the judge if necessary. As we stated in Wenger:
Most waivers are effective when set out in writing and signed[.] . . . Waivers of appeal must stand or fall with the agreements of which they are a part. If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal. 58 F.3d at 282; see also Schmidt, 47 F.3d at 190.
Woolley does not dispute that she signed the written plea agreement containing the appeal waiver; nor does she claim that she was illiterate or was otherwise unable to read and understand the agreement's terms. Rather, she argues that she did not enter into it voluntarily because her lawyer failed to discuss the appeal waiver with her prior to the guilty plea hearing. Thus, we examine the record as a whole to determine whether Marcia Woolley voluntarily and knowingly waived her right to appeal.
A. The Rule 11 Colloquy at the Time Woolley Entered Her Guilty Plea
"Federal Rule of Criminal Procedure 11 dictates that before accepting any guilty plea, the trial court must discuss with the defendant a host of issues, including the waiver of certain constitutional rights, and must ensure that the plea is voluntary." Agee, 83 F.3d at 884 n.1 (7th Cir. 1996). Rule 11 "require[s] that a defendant's guilty plea be [made] voluntarily (i.e., not induced by threats or promises of any kind). Thus, the defendant must understand the [nature and the] elements of the crime to which he is pleading, as a guilty plea is an admission of all of the elements of the crime." United States v. Ranum, 96 F.3d 1020, 1024 (7th Cir. 1996) (citations omitted). Even though some circuits have held that, when accepting a plea agreement which includes a sentence appeal waiver, the trial judge must conduct a specific colloquy with the defendant addressing the waiver, *fn9 the law of this Circuit is clear that the court is not required to conduct a specific dialogue with the defendant concerning the waiver, so long as the record contains sufficient evidence for the court to determine if the defendant has knowingly and voluntarily waived his or her right to appeal. Agee, 83 F.3d at 884 (citing Wenger, 58 F.3d at 282-83).
In this case, the record reveals that the trial judge conducted an in-depth inquiry concerning Woolley's understanding of both the plea agreement and the appeal waiver. The district judge specifically pointed out to Woolley the waiver provision contained within the plea agreement. He inquired of her if she had read the waiver and understood its terms (she stated that she did), and he informed her that she was giving up "any and all rights to appeal" by agreeing to the waiver. He next asked Woolley if she had any questions about the waiver, and she replied that she did not.
The experienced trial judge went beyond merely questioning Woolley herself about the waiver; he also inquired of her lawyer if he had discussed the waiver with Woolley. When the attorney responded that he had not, the judge prudently adjourned the hearing and gave the attorney and his client additional time to confer to ensure that Woolley fully understood that she was giving up the right to appeal her sentence. After a short recess in the proceedings, the colloquy between the judge and the defendant resumed, and the trial judge recited again, for the benefit of both Woolley and her attorney, that the statutory maximum for the charge she was facing was ten years. Furthermore, the judge specifically asked Woolley whether she had any questions concerning the possible maximum sentence, and Woolley replied that she did not.
The judge also asked Woolley's lawyer what the "worst case scenario" was from a sentencing standpoint that he had discussed with his client. Woolley's attorney stated that, although Woolley's pre-departure Guideline calculation could provide for a sentence of around twenty-six months, he had informed her of the U.S. Attorney's Office's intention to seek an upward departure to the statutory maximum. At this point, the judge, upon realizing that the Government was seeking a substantial upward departure from the Guideline range, discussed with both Woolley's counsel and the Assistant U.S. Attorney ("AUSA") in Woolley's presence the magnitude of the upward departure. At that time, the following colloquy took place between the judge and Woolley:
[THE COURT]: The reason we're having this discussion, sounds like there's quite a variance here in terms of what the possibilities are in terms of your sentence and it sounds like the guidelines could come in as low as 26 months or, if the Court were to decide to depart upward under special circumstances, theoretically you could receive up to the 10 year statutory maximum sentence. So do you understand that is the worst case scenario?
[DEFENDANT WOOLLEY]: Yes.
[THE COURT]: Do you also understand that after your guideline range has been determined, the Court has the authority in some circumstances to depart from the guidelines and impose a sentence that is more severe or less severe than the sentence called for by the guidelines?
[DEFENDANT WOOLLEY]: Yes.
* * *
[THE COURT]: Do you understand that by entering into this agreement and entering a plea of guilty, you will have waived or given up your right to appeal any part of this sentence? Do you understand that?
[DEFENDANT WOOLLEY]: Yes.
As the foregoing demonstrates, the trial judge in this case was very careful to provide sufficient time and an opportunity for Woolley and her counsel to confer concerning the sentence appeal waiver, and the judge accepted her guilty plea only after making a complete record demonstrating that the defendant did in fact understand the waiver as well as the terms and ramifications of the sentence imposed. Thus, as was the case in Schmidt, "[t]he guilty plea hearing could not be more clear in reflecting that it was conducted in full accordance with Fed.R.Crim.P. 11, and reveals that [Woolley] knowingly and voluntarily waived [her] right to appeal [her] . . . sentence." *fn10 47 F.3d at 191. As noted supra, Woolley nowhere claims that she was illiterate or otherwise unable to understand the plea agreement or sentence appeal waiver (she completed high school and had received some post-secondary vocational training), and we are convinced from our review of the record that her guilty plea and appeal waiver were entered into knowingly and voluntarily.
B. Woolley's Attempt to Circumvent the Plea Agreement by Alleging Ineffective Assistance of Counsel
Notwithstanding the fact that the record clearly demonstrates that "after a thorough colloquy with the district judge, [Woolley] again expressly waived [her] right to appeal," *fn11 Marcia Woolley has appealed. She claims that she is entitled to have this court hear the merits of her appeal because her counsel provided inadequate assistance in advising her to accept the appeal waiver as part of the plea agreement. At oral argument, her counsel acknowledged that he was familiar with our oft-repeated admonition that "[t]he preferred method for raising a claim of ineffective assistance of counsel is either by bringing a motion for new trial or a request for collateral relief under 28 U.S.C. sec. 2255." *fn12 United States v. Wiman, 77 F.3d 981, 988 (7th Cir. 1996). The reason we discourage bringing ineffective assistance claims on direct appeal is because "such claims are very unlikely to find any factual support in the trial record and an adverse determination on direct appeal will be res judicata in any subsequent collateral attack." United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997). Further, the bringing of such claims on direct appeal can result in a waste of a court's judicial resources, as we often examine an appellant's ineffective assistance arguments, only to conclude that the record is insufficient for us to even rule on whether the record is sufficient to establish the appellant's claim. See United States v. Morgano, 39 F.3d 1358, 1375 (citations omitted); see generally Guinan v. United States, 6 F.3d 468, 474 (Easterbrook, J. concurring) ("Rules of procedure should be designed to induce litigants to present their contentions to the right tribunal at the right time. For ineffective assistance, the court of appeals on direct appeal is the wrong tribunal at the wrong time."). At oral argument, in response to a question from the bench, counsel made clear that he wished to proceed with the ineffective assistance claim on direct appeal, and the Government's lawyer likewise requested that we rule at this time (though he candidly conceded that, if he were in his opponent's position, he would request that the court dismiss the appeal). Thus, in keeping with our rule that we will consider ineffective assistance claims on direct appeal upon the request of both parties, *fn13 and since it is necessary to the resolution of the Government's motion to dismiss, we address Woolley's argument that her counsel was ineffective in advising her to accept the sentence appeal waiver as part of the plea agreement.
To prevail upon an ineffective assistance claim, Woolley must establish both that her counsel's performance "fell below an objective standard of reasonableness and that the deficient performance prejudiced the outcome of the proceedings." Cooke, 110 F.3d at 1299 (citing Strickland v. Washington, 466 U.S. 668, 688, 691-92 (1984)); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985). To demonstrate prejudice arising from counsel's allegedly-deficient performance which led to the entry of a guilty plea, a defendant must establish that, but for counsel's erroneous advice, the defendant would not have entered the guilty plea. See McLeese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996). Woolley claims that her counsel rendered ineffective assistance in failing to discuss the appeal waiver with her until the point during the change of plea hearing when the judge specifically stopped the proceedings so that Woolley and her counsel could confer about the waiver. Woolley further contends that she did not receive consideration in the form of concessions from the Government for her agreement not to appeal her sentence.
Woolley's first argument is that, since her counsel failed to discuss the appeal waiver provision of the plea agreement with her prior to the change of plea hearing, she was not fully informed of, and did not participate in, the decision to accept that provision. In support, she cites Johnson v. Duckworth, 793 F.2d 898 (7th Cir. 1986), where we held that "a defendant must be involved in the decision-making process regarding the [plea] agreement's ultimate acceptance or rejection." 793 F.2d at 902. Examination of the plea hearing transcript, as quoted supra, makes clear that, when the trial judge learned that Woolley and her counsel had not specifically conferred about the appeal waiver, he adjourned the hearing to give them a chance to discuss the appeal waiver in order that she might be made fully aware of and understand its terms. Upon completion of Woolley's and her counsel's conference concerning the appeal waiver, the district judge confirmed for Woolley and her counsel that the statutory maximum for Woolley's crime was ten years. The judge then specifically asked Woolley if she had "any questions at all" about the appeal waiver, and Woolley responded, "No. That's correct." Later in the hearing, the judge again reiterated to Woolley that, if he decided to depart upward, he could impose a maximum sentence of ten years, although on the other hand her sentence could come in as low as twenty-six months under the Guidelines. Woolley once again stated that she understood this. Finally, the judge again asked the defendant if she understood that she was giving up her right to appeal as part of the plea agreement, and the defendant responded in the affirmative. In sum, the record clearly reflects that, contrary to Woolley's assertions, she did in fact have an opportunity to confer with her lawyer and participate in the decision to accept or reject the appeal waiver. Thereafter, in response to an in-depth interrogation by the judge concerning her various rights and options, she specifically and repeatedly stated that she understood the wavier and agreed to its terms. Thus, we refuse to conclude that the defendant was not sufficiently involved in the decision-making process concerning the waiver.
With respect to Woolley's claim that she failed to receive consideration on her sentence for the appeal waiver, the record reveals that as part of the on-going plea negotiations, the Government made a number of factual concessions in the plea agreement. For example, while it was the Government's position that Marcia Woolley herself approached Rodgers about purchasing a handgun for the Woolleys, as a concession the plea agreement merely stated that Marcia "overheard Martin Woolley tell Rodgers that they needed a gun." App.B, p.4. In fact, the Government made additional concessions on the day of the change of plea hearing, which were penciled in to the agreement. *fn14 Further, the Government agreed to recommend a three-level downward adjustment for acceptance of responsibility, and the Government also agreed not to bring any additional charges (except for any crime of violence) which arose from the series of events leading up to the plea which might be discovered in the future. The point of the factual concessions in the plea agreement was to assist her in her request for a downward departure and to portray the facts in a light more favorable to Woolley's claim that she did not assist Martin in obtaining the gun.
The plea agreement did not, however, prevent the Government from challenging the facts set forth in the agreement at the sentencing hearing, and the Government in fact did so. For example, the Government called Rodgers to the stand, and he testified that Marcia, as opposed to Martin, initially approached him about purchasing a gun for the Woolleys. The Government argued that the district judge should depart upward to the statutory maximum of 120 months because Woolley knew that her husband was a convicted felon and was purchasing the gun for protection when travelling to Florida to purchase narcotics for resale in Illinois, and two deaths resulted from her assistance to Martin in obtaining the gun. The Government argued that the judge should depart upward under sec. 5K2.1 of the Guidelines, which authorizes an upward departure when death results from the commission of the offense. Woolley, by contrast, argued for a downward departure, claiming that she was physically abused by Martin and that he coerced her into assisting in the gun's procurement. *fn15 The judge ultimately agreed with the Government. He found, contrary to what was set forth in the plea agreement, that it was Marcia Woolley, not her husband Martin, who in fact approached Rodgers, and discussed and arranged for the purchase of the gun. The judge found that, by seeking to assist Martin in obtaining a gun for the purchase of narcotics, Marcia knowingly risked that death would occur, even though the deaths which occurred did not come about during a drug transaction. The judge, while acknowledging that he would depart downward if he thought coercion was present, also concluded that the evidence did not support the conclusion that Martin Woolley coerced Marcia into assisting him with the purchase of the handgun. The judge therefore departed upward, to ninety-six months, as opposed to 120 months.
Thus, consistent with the plea agreement, both the Government and the defendant presented evidence in support of their respective positions concerning a potential departure in Woolley's sentence at the sentencing hearing, and the Government's evidence carried the day. "Defendants who appeal from sentences following plea agreements always point to unanticipated and unwelcome developments. . . . To say that a waiver of appeal is effective if and only if the defendant lacks grounds for appeal is to say that waivers will not be honored." Wenger, 58 F.3d at 282. The record is clear beyond a reasonable doubt, a standard of proof not required at sentencing hearing proceedings, *fn16 that Woolley was apprised of and knowingly and actively participated in the decision to enter into a plea agreement which included a sentence appeal waiver, and she received consideration from the Government for her acceptance of that agreement. The trial judge's handling of the proceedings in this case, and in particular his careful attention to the appeal waiver, was a model of clarity for trial judges to emulate. We conclude that Woolley did not receive ineffective assistance of counsel, and we grant the Government's motion to dismiss the appeal.
Woolley's appeal is DISMISSED.