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United States v. Selvy

August 30, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
TRACY LEE SELVY, APPELLANT.



Appeal from the United States District Court of the Eastern District of Missouri.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: June 15, 2010

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

Pursuant to a written plea agreement, Tracy Selvy pleaded guilty to conspiracy to distribute an unspecified quantity of marijuana, conspiracy to distribute a substance containing more than one kilogram of heroin, and money laundering. The plea agreement contained an appeal waiver that the district court*fn1 reviewed with Selvy. The district court accepted Selvy's guilty pleas and sentenced Selvy to 188 months' imprisonment, the top of the Guidelines range. On appeal, Selvy argues that the government breached the plea agreement. Alternatively, Selvy maintains that if the government did not breach the agreement, he entered the agreement, including the appeal waiver, unknowingly and unintelligently. We affirm.

I. Background

The government presented a three-count superceding information, charging Selvy with conspiracy to distribute an unspecified quantity of marijuana, conspiracy to distribute heroin, and money laundering. Selvy waived the right to an indictment and agreed to proceed with this information. Selvy entered into a plea agreement with the government and agreed to plead guilty to the three counts charged in the superceding information. In exchange, the government agreed not to file a notice under 21 U.S.C. § 851 to seek an enhanced sentence based upon a prior drug conviction.*fn2 The agreement contained specific Guidelines stipulations, including the base offense level, a two-level leadership enhancement, and a three-level reduction for acceptance of responsibility. The parties did not reach any stipulations as to Selvy's criminal history. The agreement also reported that Selvy waived the right to appeal "any issues relating to the negotiation, taking or acceptance of the guilty plea or the factual basis of the plea" and "to appeal all sentencing issues," as long as the district court applied the plea agreement's recommendations and sentenced him within the Guidelines range.*fn3

Selvy appeared and pleaded guilty to the three counts of the superceding information. During the plea hearing, the district court recognized that the plea agreement contained an appeal waiver. As to non-sentencing issues, both parties expressly agreed to "waive all rights to appeal non-jurisdictional issues including . . . any issues relating to the negotiation, taking or acceptance of the guilty plea or the factual basis for the plea." As to sentencing, the waiver expressly waived "all rights to appeal all sentencing issues, including any issues relating to the determination of the Total Offense Level, the Criminal History Category, Career Offender status and Armed Career Criminal Status." The court reviewed the terms of the waiver with Selvy and accepted Selvy's guilty pleas.

The probation office prepared a presentence investigation report (PSR). The PSR found that Selvy's base offense level was 34, applied a two-level increase for leadership, and applied a three-level reduction for acceptance of responsibility, for a total offense level of 33. Paragraphs 9, 10, 11, and 12 of the PSR outlined "offense conduct" dating back to September 1998. Consequently, the PSR counted four criminal history points from offenses in 1990 and 1991. Selvy objected, arguing that the government had breached the plea agreement by advocating for inclusion of uncharged drug trafficking activity dating back to September 1998 as relevant conduct. Selvy also noted that even if the government had not breached the agreement, the claimed amounts were not relevant conduct. Finally, Selvy noted that because the instant offenses were not relevant conduct, because he spent just four months incarcerated, and because he was released in May 1992, the 1990 and 1991 offenses were not countable under U.S.S.G. § 4A1.2(e)(2). The government responded that it believed that the plea agreement had not limited the scope of relevant conduct or prior convictions. The government did concede that the 1990 and 1991 prior convictions should not be used to calculate Selvy's criminal history points. Accordingly, the government agreed that Selvy's total offense level was 33 and that his criminal history category was II. Those calculations established a Guidelines range of 151 to 188 months' imprisonment. The government also requested an upward departure on the grounds that a criminal history category of II underrepresented the seriousness of Selvy's criminal history.

At the sentencing hearing, Selvy's attorney reported that, because the government was willing to agree that the appropriate criminal history category was II, he had no objections to the Guidelines calculations. Accordingly, the district court found the Guidelines range to be 151 to 188 months. The government then requested an upward departure to bring Selvy's criminal history category from II to IV. The district court denied the government's request for an upward departure. But the district court also specifically noted that it had seen Selvy 20 years prior. The district court also stated that it believed that Selvy's drug trafficking had been ongoing "for ten years or so now." The district court then sentenced Selvy at the high end of the Guidelines range, imposing a sentence of 188 months' imprisonment.

II. Discussion

On appeal, Selvy argues that he entered the plea agreement, including the appeal waiver, unknowingly and unintelligently because the government made assurances that turned out to be false. See United States v. Unger, 700 F.2d 445, 448 n.4 (8th Cir. 1983) (noting "that if a defendant can make a strong showing that a guilty plea was entered in reliance on false assurances of the sentence to be imposed, the plea can be set aside as involuntary"). Selvy asserts that the government initially conceded that his 1990 and 1991 convictions should not be considered in the calculation of his criminal history score but nevertheless continued to rely upon the 1990 and 1991 convictions to seek an increased sentence. Selvy contends that because he believed the plea agreement prohibited the government from seeking a higher sentence based upon his 1990 and 1991 convictions, he entered the plea agreement unknowingly and unintelligently.

Selvy also asserts that the plea agreement suggested that the parties agreed that his relevant conduct did not extend back before summer 2006. Selvy acknowledges that such an agreement would not bind the court, but he maintains that it should have bound the government not to seek an increased sentence based upon relevant conduct that it agreed should not be considered. Selvy argues that the government violated his right to due process by seeking a sentence higher than agreed to in the plea agreement.

Next, Selvy argues that if we find that the appeal waiver is valid, a miscarriage of justice would occur if the appeal waiver is applied. Finally, Selvy argues that in this case, the district court reviewed the existence of an appeal waiver with him. But, he submits, the district court failed to review the terms of the appeal waiver, thus failing to comply with Federal Rule of Criminal Procedure 11(b)(1)(N).

"We review de novo the issue of whether a defendant has knowingly and voluntarily waived rights in a plea agreement." United States v. Swick, 262 F.3d 684, 686 (8th Cir. 2001). "We review questions regarding the interpretation and enforcement of plea agreements de novo. Where a plea agreement has been accepted by the court, we generally interpret the meaning of the terms in the agreement ...


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