USA v. Craig Clark

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14473
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG CLARK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:19-cr-00058-LAG-TQL-27
____________________
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2 Opinion of the Court 21-14473
Before WILSON, NEWSOM , and G RANT, Circuit Judges.
PER CURIAM:
Defendant-Appellant Craig Clark appeals following his
“blind” guilty plea to his charges, after the district court rejected
the negotiated plea agreement that he and the government wished
to enter. After a thorough review of the record and briefs, we va-
cate and remand.
I.
In November 2019, a grand jury indicted Clark for conspir-
acy to possess with intent to distribute controlled substances, in vi-
olation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (D) and 846 (Count 1),
and possession with intent to distribute methamphetamine, in vio-
lation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) (Count 32). The grand
jury indicted 32 codefendants, including Clark.
After some back and forth with the government, Clark en-
tered into a plea agreement and signed the agreement on August
18, 2020. The plea agreement included an appeal waiver, which
stipulated that:
any right to appeal the imposition of sentence[,] . . .
including the right to appeal the amount of restitution
imposed, if any, except in the event that the District
Court imposes a sentence that exceeds that advisory
guideline range as that range has been calculated by
the District Court at the time of sentencing, or in the
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21-14473 Opinion of the Court 3
event that the District Court imposes a sentence in
excess of the statutory maximum.
The agreement further specified that Clark would be released from
his waiver if the government appealed his sentence, but he other-
wise waived any right to (1) move to modify his sentence, except
in the event of an applicable retroactive amendment to the Sen-
tencing Guidelines, or (2) collaterally attack his conviction and sen-
tence, except for a claim of ineffective assistance of counsel or a
claim under 28 U.S.C. § 2241.
The agreement also stated that Clark would provide truthful
testimony about his and others’ involvement in the charges in the
indictment and “any and all criminal violations” about which he
had information. In exchange, the government agreed to accept
the guilty plea “in full satisfaction of all possible federal criminal
charges” that it knew of at the time. In exchange for accepting re-
sponsibility, the government would recommend a downward ad-
justment. Also, if Clark cooperated truthfully, the government
would let the sentencing court know and possibly move for recom-
mending a departure below the Guidelines range under U.S.S.G.
§ 5K1.1 or, if the cooperation was completed later, it would con-
sider whether the assistance warranted a motion to reduce his sen-
tence within one year of sentencing. The government also agreed
that any self-incriminating information that it did not previously
know, and that Clark provided in connection with his cooperation,
would not be used in determining his Guidelines range. It also
agreed not to bring additional charges based on previously
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4 Opinion of the Court 21-14473
unknown information provided by Clark, other than any relating
to violent criminal activity.
On September 18, 2020, the courtroom deputy notified the
parties that the district court would reject the plea agreement. The
notice stated that the proposed appeal waiver’s statement that
Clark waived an appeal of a sentence within the Guidelines range
as that range was calculated by the district court had “the potential
of leading to a result that [was] inconsistent with the interests of
justice and conflict[ed] with consistency in sentencing.” Both par-
ties moved separately to schedule a change of plea hearing, arguing
against the district court’s rejection of the plea agreement.
At the change of plea hearing, the district court rejected
Clark’s plea agreement. It explained to Clark that, although it was
not a party to the agreement, the law required it to consider the
plea agreement and decide whether to accept it. The district court
stated that, regarding the waiver of an appeal of a sentence that the
district court imposed outside the Guidelines range as the district
court calculated that range, the Eleventh Circuit had “recently held
that a waiver containing the language . . . bars review of even
clearly erroneous guidelines calculations.” It then found that the
appeal waiver would bar the Eleventh Circuit’s review of its Guide-
lines calculations, even if those calculations were clearly erroneous,
so the agreement would “not ensure that the main objectives of the
sentencing guidelines, namely, consistency and certainty in sen-
tencing, [were] upheld.” Rather, the district court found that the
agreement “would undermine the main objectives of the
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21-14473 Opinion of the Court 5
sentencing guidelines” and “could lead to a result that is incon-
sistent with the interests of justice and in conflict with consistency
in sentencing.”
In response, Clark stated that he would enter a “blind” plea
to both Counts 1 and 32, but he objected to the rejection of the plea
agreement and agreed with the government that he stood to ben-
efit from it. After completing the plea colloquy, Clark pleaded
guilty, without a plea agreement to Counts 1 and 32, which the
district court accepted.
His presentence investigation report found his Guidelines
range of 235 to 293 months’ imprisonment. At the sentencing hear-
ing, the district court sua sponte granted Clark a 2-level decrease in
his offense level for pleading guilty during the trial moratorium,
resulting in a new Guidelines range of 185 to 235 months’ impris-
onment. Citing the need to avoid unwarranted sentencing dispar-
ities, it imposed a downward variance and sentenced him to 180
months’ imprisonment for Counts 1 and 32, to run concurrently,
followed by 5 years on supervised release. Clark timely appealed.
II.
We review the district court’s rejection of a plea agreement
for abuse of discretion.
United States v. Gomez-Gomez, 822 F.2d
1008, 1010 (11th Cir. 1987). Under this standard, we give the dis-
trict court’s decision, after satisfying its obligations under Federal
Rule of Criminal Procedure 11, “utmost deference” because “[i]t is
far better for a court to err on the side of rejecting a valid guilty
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6 Opinion of the Court 21-14473
plea than to violate a defendant’s constitutional rights by entering
judgment on a defective plea.”
Id. at 1011. In the criminal context,
when determining whether the district court abused its discretion,
we have stated that we will affirm the district court’s judgment un-
less it acted arbitrarily or unreasonably.
United States v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006) (per curiam).
Both Clark and the government argue that the district court
abused its discretion in rejecting the plea agreement. They argue
that the district court’s stated reasons for rejecting his plea agree-
ment (1) reflect a misunderstanding of our decision in
United States
v. Boyd, 975 F.3d 1185 (11th Cir. 2020), and (2) are contradicted by
its acceptance of his codefendants’ pleas with identical appeal waiv-
ers.1 We will address each argument in turn.
First, we agree with Clark and the government that the dis-
trict court rejected Clark’s plea agreement on a misunderstanding
of our decision in
Boyd. Our decision in
Boyd did not make any
major change in how this court reviews appeal waivers since our
decision in
United States v. Howle, 166 F.3d 1166 (11th Cir. 1999).
1 Because we find that the district court abused its discretion by misconstruing
our decision in
Boyd and acting arbitrarily in accepting plea agreements with
identical language for other codefendants, we need not address (1) whether it
was inappropriate for the district court to reject the plea agreement because it
was a “charge bargain” under which the government agreed to dismiss at least
one charge or (2) whether the district court improperly interfered with a pros-
ecutorial function and involved itself in the negotiations process.
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21-14473 Opinion of the Court 7
Instead, our decision in
Boyd is an application of the principle an-
nounced in
Howle.
In
Howle, we declined to review the defendant’s preserved
arguments about the Sentencing Guidelines because he entered an
otherwise enforceable appeal waiver that waived his right to attack
his sentence.
Id. at 1167, 1169. We acknowledged that “[w]hile 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.”
Id. at 1169. But
we have also explained that a sentence appeal waiver “is not an ab-
solute bar to appellate review” and review may be available, de-
spite a valid appeal waiver, when the defendant was “sentenced en-
tirely at the whim of the district court,” above the statutory maxi-
mum, or based on a constitutionally impermissible factor.
United
States v. Johnson, 541 F.3d 1064, 1068 (11th Cir. 2008) (internal
quotation marks omitted).
In
Boyd, we held that a plea agreement, which barred re-
view unless the sentence “exceed[ed] the advisory guideline
range,” unambiguously barred review of the district court’s Guide-
lines calculations, so we declined to consider the defendant’s argu-
ments about those calculations. 975 F.3d at 1190–91. We also
noted that we had stated that an appeal waiver may waive “the
right to appeal difficult or debatable legal issues or even blatant er-
ror.”
Id. at 1191 n.5 (quoting
United States v. Grinard-Henry, 399
F.3d 1294, 1296 (11th Cir. 2005)). To that end, we also noted that
sentence appeal waivers benefit both the government and the
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8 Opinion of the Court 21-14473
defendant because such a waiver “is another chip the defendant can
bring to the bargaining table and trade for additional concessions
from the government.”
Id. (quoting
United States v. Buchanan,
131 F.3d 1005, 1008 (11th Cir. 1997)).
We continued to reaffirm our holding in
Howle before and
after we reiterated and applied it in
Boyd.
See, e.g.,
King v. United
States, 41 F.4th 1363, 1367 (11th Cir. 2022);
Johnson, 541 F.3d at
1068–69.2 Thus, the district court abused its discretion when it un-
reasonably erred in finding that
Boyd changed our caselaw for re-
viewing appeal waivers.
Second, we agree with Clark and the government that the
district court acted arbitrarily in accepting plea agreements from
other codefendants with identical language that the district court
stated was the reason for rejecting Clark’s plea agreement.3
2 We also applied the holding in
Howle in many unpublished opinions.
See,
e.g.,
United States v. Jamison, 850 F. App’x 696, 698 (11th Cir. 2021) (per cu-
riam);
United States v. Masilotti, 565 F. App’x 837, 839–40 (11th Cir. 2014) (per
curiam);
United State v. Holland, 214 F. App’x 957, 958–59 (11th Cir. 2007)
(per curiam).
3 There were two codefendants who pleaded guilty in August 2020, which was
at the same time as Clark’s original change of plea hearing. Those codefend-
ants had the same appeal waiver as Clark. But because the district court ac-
cepted those codefendants’ pleas before the issuance of
Boyd, those analogies
are not relevant to the inquiry here. Rather, we focus on the district court’s
conduct after
Boyd and after Clark’s guilty plea in September 2020.
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21-14473 Opinion of the Court 9
For example, on August 11, 2021, one of Clark’s codefend-
ants, Kayla Lockett, entered a plea agreement with the govern-
ment, which provided, in relevant part, that she waived “any right
to appeal the imposition of sentence[,] . . . except in the event that
the District Court impose[d] a sentence that exceed[ed] the advi-
sory guideline range as that range ha[d] been calculated by the Dis-
trict Court” or if she was sentenced over the statutory maximum.
At Lockett’s change of plea hearing on the same day, the district
court explained her appeal waiver, specifying that Lockett could
not appeal her sentence even if the district court “ma[d]e a mis-
take” or clearly erred. At the end of the hearing, Lockett pleaded
guilty, and the district court accepted Lockett’s plea.
From June 2021 through June 2022, after our decision in
Boyd, this same scenario occurred multiple times, with many of
Clark’s codefendants entering plea agreements with the same ap-
peal waiver as Clark’s. Unlike Clark, the district court accepted
each codefendants’ plea agreement. Thus, the district court arbi-
trarily accepted the appeal waiver for multiple codefendants in this
case. The district court provided no explanation for why Clark’s
appeal waiver was denied while his codefendants’ waivers were ac-
cepted. This arbitrary treatment of Clark’s waiver amounted to an
abuse of discretion.
Lastly, we find that the district court’s rejection of the plea
agreement prejudiced Clark. Without the plea agreement, Clark
could not obligate the government to consider recommending a
sentence below the statutory minimum or hold the government to
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10 Opinion of the Court 21-14473
its original agreement not to press additional charges based on con-
duct within the same conspiracy. Because of these losses, the dis-
trict court’s rejection of the plea agreement prejudiced Clark.
III.
The district court abused its discretion and arbitrarily re-
jected Clark’s plea agreement by finding that
Boyd marked a signif-
icant change in our review of appeal waivers. Further, the district
court abused its discretion by arbitrarily rejecting Clark’s plea
agreement while accepting his codefendants’ post-
Boyd agree-
ments that contained identical appeal waivers. Lastly, the district
court’s rejection of Clark’s plea agreement prejudiced him. Ac-
cordingly, we vacate and remand for further proceedings con-
sistent with this opinion.
VACATED AND REMANDED.
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