USA v. Khattak
Filed December 6, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4169
UNITED STATES OF AMERICA
v.
GUL KHAN KHATTAK,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 94-cr-00472
(Honorable Joseph E. Irenas)
Argued July 20, 2001
Before: SCIRICA, RENDELL and ROSENN, Circuit Judges
(Filed: December 6, 2001)
LORI M. KOCH, ESQUIRE
(ARGUED)
Office of Federal Public Defender
800 Hudson Square, Suite 350
Camden, New Jersey 08102
Attorney for Appellant
GEORGE S. LEONE, ESQUIRE
(ARGUED)
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This case addresses the validity of a "waiver of appeal"
provision in a guilty-plea agreement, an issue of first
impression in our court. Ten other Courts of Appeals have
held that such waivers are generally valid. We hold that
waivers of appeals are generally permissible if entered into
knowingly and voluntarily, unless they work a miscarriage
of justice.
I.
On September 13, 1994, defendant Gul Khan Khattak, a
resident of Pakistan, was charged with conspiring to
possess with intent to distribute and to import eight
kilograms of heroin from Pakistan into the United States.
On April 30, 1999, Khattak was arrested and extradited to
the United States.1 In a proposed plea agreement, the
government agreed: 1) to accept Khattak's guilty plea to the
conspiracy to import heroin charge; 2) to dismiss the
conspiracy with intent to distribute charge; 3) to bring no
further charges against Khattak related to past heroin or
hashish transactions; 4) to aid Khattak's efforts to be
exempted from the ten-year mandatory minimum for
conspiracy to import heroin by stipulating to four of the five
elements needed to qualify for the "safety valve" under 18
U.S.C. S 3553(f) and U.S.S.G. S 5C1.2; 5) to stipulate to
Khattak's eligibility for a two-level reduction for acceptance
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1. Khattak and co-defendant Amir Hanza Khan attempted to convince a
Customs Officer of the Pakistani Government to help smuggle heroin into
the United States. At the request of the United States Drug Enforcement
Agency, the Customs Officer agreed to act in an undercover capacity. He
met with Khattak and Khan on several occasions, capturing some of the
meetings on videotape. The Customs Officer eventually agreed to assist
in shipping eight kilograms of heroin to the United States. Although
Khattak was not present for all the meetings, Khan was clearly
negotiating and making arrangements on behalf of himself and Khattak,
often using words like "we" or "our" in reference to himself and Khattak.
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of personal responsibility under U.S.S.G. S 3E1.1(a); and 6)
to agree that Khattak had "timely notified authorities" of his
intention to plead guilty, qualifying for an additional one-
level reduction under U.S.S.G. S 3E1.1(b)(2).
The government also stipulated that the applicable
sentencing guideline for violating 21 U.S.C. S 963 was
U.S.S.G. S 2D1.1 and that the amount of heroin was "less
than ten kilograms," resulting in a base offense level of 34.
With three levels of reduction, the government agreed the
total offense level was 31. The government also waived its
right to appeal the judicial determination of the offense
level if it exceeded level 31.2
In exchange, Khattak agreed: 1) to plead guilty to
conspiracy to import heroin; 2) to stipulate he intended to
import eight kilograms of heroin, rendering appropriate a
base level of 34 (the weight was at least three kilograms,
but less than ten); 3) to stipulate the total offense level
should be no greater than 31; and 4) to waive his right to
appeal the determination of the offense level. Significantly
for our purposes, the plea agreement also provided:
Gul Khan Khattak knows that he has, and voluntarily
waives, the right to file any appeal, any collateral
attack, or any other writ or motion after sentencing--
including, but not limited to, an appeal under 18
U.S.C. S 3742 or a motion under 28 U.S.C.S 2255 --
that challenges the sentencing court's determination or
imposition of the offense level, if the total offense level
determined by the court is equal to or less than the
stipulated offense level . . . .
(Supplemental Appendix at 8.) Both the government and
Khattak retained the right to seek additional adjustments
or departures. The plea agreement provided that"[t]o the
extent that the parties do not stipulate, each reserves the
right to argue the effect of any fact upon sentencing." (Id. at
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2. The plea agreement stated, "The government will not file any appeal,
motion, or writ that challenges the sentencing court's determination or
imposition of the offense level, if the total offense level determined by the
court is equal to or greater than the stipulated offense level . . . ."
(Supplemental Appendix at 8.)
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3-4.) In this regard, Khattak clarified his desire to pursue
a minor-role adjustment, to which the government would
not agree.
Khattak signed the plea agreement in the presence of the
District Court.3 Acknowledging the agreement had been
translated, Khattak testified, "I offer my plea of guilty freely
and voluntarily of my own accord with full understanding
of all matters set forth in the . . . Indictment[and] in this
application." (Id. at 3-4.) The District Court then conducted
an extensive Rule 11 colloquy, with the help of a translator.
The District Court specifically questioned Khattak's
understanding of his waiver of appeal and its effect on his
desire for a minor-role adjustment. The Court asked,"Do
you understand that so long as I sentence you based on an
Offense [Level] of 31 or less, you will not be able to appeal
my sentence, and will not be able to challenge the sentence
in later proceedings that might otherwise be permitted
under law?" Khattak replied, "Yes, I understand." The Court
then explained, "The result of that, I want to also make
clear that even if I deny your minor role adjustment, you
will not be able to appeal that decision because it's still a
31, if everything else is followed, you will not be able to
appeal my decision on this point?" Again, Khattak replied,
"Yes, I understand." (Appendix at 47.)
The District Court denied the minor-role adjustment
sought by Khattak, but fixed the offense level at 29, which
carried a range of 87 to 107 months' imprisonment. 4 The
District Court then departed downward to 84 months,
based on the harsh conditions in the Pakistani jail where
Khattak had been detained prior to extradition. Despite his
waiver, Khattak filed a notice of appeal.
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3. Because of a typographical error, Khattak read and twice initialed
corrections in the waiver paragraph.
4. The Court found Khattak eligible for the safety valve under 18 U.S.C.
S 3553(f) and U.S.S.G. S 5C1.2 and reduced his offense level from 31 to
29.
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II.
Khattak does not claim he misunderstood his waiver. Nor
does he challenge the language of his plea agreement,
plainly waiving his ability to appeal. But Khattak contends
that waiver-of-appeals provisions are void as contrary to
public policy, because defendants cannot ever knowingly
and voluntarily waive their rights to appeal future errors.
Khattak asks us to void the waiver-of-appeals provision of
his plea agreement and reach the merits of his appeal (the
denial of a minor-role adjustment), or in the alternative,
vacate his guilty plea. We examine the legality of waiver-of-
appeals provisions de novo, as it is a question of law.
United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir.
2000). We do not address the merits of Khattak's appeal.
III.
As noted, ten other Courts of Appeals have found waivers
of appeals generally permissible and enforceable. United
States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001); United
States v. Fisher, 232 F.3d 301, 303 (2d Cir. 2000); United
States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000); United
States v. Branam, 231 F.3d 931, 932 (5th Cir. 2000); United
States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001);
United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir.
2000); United States v. Estrada-Bahena, 201 F.3d 1070,
1071 (8th Cir. 2000); United States v. Nguyen , 235 F.3d
1179, 1184 (9th Cir. 2000); United States v. Rubio, 231
F.3d 709, 711 (10th Cir. 2000); United States v. Howle, 166
F.3d 1166, 1168-69 (11th Cir. 1999). Each case follows a
similar line of reasoning.
As the Supreme Court has stated, "A criminal defendant
may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution."
United States v. Mezzanatto, 513 U.S. 196, 201 (1995); see
also Peretz v. United States, 501 U.S. 923, 936 (1991) ("The
most basic rights of criminal defendants are . . . subject to
waiver."). In every plea agreement, the defendant waives the
right to a jury trial, the right to confront and cross-examine
witnesses, and the right against self-incrimination. Boykin
v. Alabama, 395 U.S. 238, 243 (1969). In addition, a
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defendant can waive his rights against double jeopardy and
his Sixth Amendment right to counsel. Ricketts v. Adamson,
483 U.S. 1, 10 (1987) (double jeopardy); Johnson v. Zerbst,
304 U.S. 458, 465 (1938) (right to counsel).
The United States Constitution does not guarantee a
right to appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983).
The right to appeal a criminal conviction is created by
statute. See 18 U.S.C. S 3742. The ability to waive statutory
rights, like those provided in 18 U.S.C. S 3742, logically
flows from the ability to waive constitutional rights. Teeter,
257 F.3d at 22; see also Shutte v. Thompson, 82 U.S. (15
Wall.) 151 (1873) ("A party may waive any provision, either
of a contract or of a statute, intended for his benefit."). If
done knowingly and voluntarily, a statutorily created right
to appeal is generally held to be waiveable. Nguyen, 235
F.3d at 1182 (noting " `the sole test of a waiver's validity is
whether it was made knowingly and voluntarily' ") (quoting
Anglin, 215 F.3d at 1068). We agree.
Khattak's arguments have been rejected by each
appellate court to consider them. Waivers of the legal
consequences of unknown future events are commonplace.
A defendant waiving a right to trial by jury, for example,
waives a procedural protection that might result in a
favorable verdict. But the "prospective nature" of waivers
has "never been thought to place [waivers] off limits or to
render a defendant's act `unknowing.' " Teeter, 257 F.3d at
21. These waivers "preserve the finality of judgments and
sentences imposed pursuant to valid pleas of guilty." United
States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992). Allowing
defendants to retract waivers would prolong litigation,
affording defendants the benefits of their agreements while
shielding them from their self-imposed burdens.
Khattak relies on United States v. Raynor, 989 F.Supp.
43, 44 (D.D.C. 1997),5 where the trial court determined a
defendant could not knowingly or intelligently waive the
right to challenge a yet-imposed sentence, as that might
result in an "illegal, unconstitutional or otherwise
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5. Khattak also relied on a district court case from the District of
Massachusetts, but that case has been effectively overruled in light of
the First Circuit's recent decision in Teeter , 257 F.3d at 14.
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improper" sentence. Id. But by waiving the right to appeal,
a defendant necessarily waives the opportunity to challenge
the sentence imposed, regardless of the merits. As the
Court of Appeals for the Eleventh Circuit explained:
A waiver of the right to appeal includes a waiver of the
right to appeal difficult or debatable legal issues--
indeed, it includes a waiver of the right to appeal
blatant error. Waiver would be nearly meaningless if it
included only those appeals that border on the
frivolous. . . . While it may appear unjust to allow
criminal defendants to bargain away meritorious
appeals, such is the necessary consequence of a
system in which the right to appeal may be freely
traded.
Howle, 166 F.3d at 1169; see also United States v. Wenger,
58 F.3d 280, 282 (7th Cir. 1995) ("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 . . . is to say that waivers will not
be honored.").
Moreover, Khattak's argument ignores that waivers of
appeals may assist defendants in making favorable plea
bargains. The government often looks favorably on the
opportunity to conserve resources necessary to prosecute
an appeal, providing defendants a valuable bargaining chip
in the plea process. Teeter, 257 F.3d at 22 (suggesting the
benefit of avoiding a lengthy, costly appeal is"very real,"
and that "in some cases, the government, without such a
waiver, might not be willing to plea-bargain at all").
Furthermore, as in this case, a defendant can bargain for
a sentence range or ceiling.
In view of these considerations, we do not believe the
waiver of appellate rights in criminal cases contravenes
public policy.6 At the same time, we believe waivers of
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6. In this respect, it bears noting the profound changes wrought by the
adoption of the Sentencing Reform Act of 1984 and the advent of the
sentencing guidelines. One consequence is that criminal sentences in
most cases are, at least in part, bargained for; that is, they are
negotiated between the defendant and the government. In this sense, the
sentencing regime has come to resemble the negotiation of civil
settlements, also conducted in the shadow of the law.
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appeals should be strictly construed. Thus, we hold that
waivers of appeals, if entered into knowingly and
voluntarily, are valid.
IV.
Nonetheless, we decline to adopt a blanket rule
prohibiting all review of certain otherwise valid waivers of
appeals. There may be an unusual circumstance where an
error amounting to a miscarriage of justice may invalidate
the waiver. Cf. Teeter, 257 F.3d at 25 ("[I]f denying a right
of appeal would work a miscarriage of justice, the appellate
court, in its sound discretion, may refuse to honor the
waiver.").
Some of our sister circuits have delineated specific
instances in which waiver-of-appeals provisions may be
found invalid. The Court of Appeals for the Fourth Circuit
identified two circumstances: if the sentence was"1)
imposed in excess of the maximum penalty provide by law
or 2) based on a constitutionally impermissible factor such
as race." Brown, 232 F.3d at 403. The Court of Appeals for
the Seventh Circuit held a waiver will not bar appeal if the
defendant claims his plea agreement was the product of
ineffective assistance of counsel. United States v. Joiner,
183 F.3d 635, 645 (7th Cir. 1999). The Court of Appeals for
the Second Circuit has held provisions that exchange the
right to appeal for a specific sentencing range may be too
broad to be valid. United States v. Goodman, 165 F.3d 169,
174 (2d Cir. 1999) ("Where the waiver more broadly
purports to waive the right to appeal a sentence within (or
below) whatever guideline range the sentencing judge
determines is applicable, we have encountered more
difficulty.").
We choose not to earmark specific situations. Rather, we
endorse the First Circuit's approach in Teeter , where the
Court of Appeals set forth certain factors to consider before
"reliev[ing] the defendant of the waiver":
[T]he clarity of the error, its gravity, its character (e.g.,
whether it concerns a fact issue, a sentencing
guideline, or a statutory maximum), the impact of the
error on the defendant, the impact of correcting the
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error on the government, and the extent to which the
defendant acquiesced in the result.
Teeter, 257 F.3d at 25-26. These factors provide some
guidelines for determining when a particular sentencing
error may warrant vacating an otherwise valid waiver of
appeal. But the governing standard to apply in these
circumstances is whether the error would work a
miscarriage of justice.
V.
In determining whether a waiver of appeal is "knowing
and voluntary," the role of the sentencing judge is critical.
Under Federal Rule of Criminal Procedure 11:
(c) Before accepting a plea of guilty or nolo cont endere,
the court must address the defendant personally in
open court and inform the defendant of, and determine
that the defendant understands the following:
. . .
(6) the terms of any provision in a plea agreement
waiving the right to appeal or to collaterally attack the
sentence.
Here, the sentencing judge clearly complied with the rule.7
As noted, the District Court inquired as to Khattak's
understanding of his waiver and its effects. Supra at 4.
Moreover, Khattak received a sentence well within the
terms of his plea agreement. "To avoid dismissal of appeal,
Defendant must show why we should not enforce the
waiver provision of the plea agreement." Rubio, 231 F.3d at
711. Khattak presents no set of circumstances that would
make his waiver unknowing or involuntary.
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7. As the District Judge made no post-sentencing remarks suggesting
rights other than those specified in the agreement, we need not consider
cases in which post-sentencing remarks have rendered an otherwise
valid waiver unenforceable. Cf. Fleming, 239 F.3d 761, 763-64; Fisher,
232 F.3d 301, 303-04.
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VI.
Waivers of appeals, if entered into knowingly and
voluntarily, are valid, unless they work a miscarriage of
justice. As noted, waivers of appeals should be strictly
construed.
We will enforce Khattak's waiver of his right to appeal.
Therefore, we have no jurisdiction to consider the merits of
his appeal of the denial of the minor-role adjustment. See
id. at 711 ("Because we conclude the Defendant knowingly
and voluntarily waived his right to appeal, the waiver
effectively deprives us of jurisdiction.").
For the foregoing reasons we will affirm the judgment of
the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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