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.
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 ...