United States of America v. Sherwin Archie

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4159
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHERWIN ARCHIE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00017-BO-1)
Argued: September 17, 2014 Decided: November 17, 2014
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Gregory and Judge Keenan joined.
ARGUED: Joshua Brian Howard, GAMMON, HOWARD, ZESZOTARSKI, PLLC,
Raleigh, North Carolina, for Appellant. Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.

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AGEE, Circuit Judge:
Pursuant to a written plea agreement, Sherwin Archie
(“Archie”) pled guilty to several charges stemming from an armed
robbery in Wilmington, North Carolina. Archie does not
challenge his conviction or guilty plea on appeal. Instead, he
contends that the district court sentenced him in violation of
the Sixth Amendment and relied upon insufficient evidence in
enhancing his sentence under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”). For the reasons that follow, we
affirm the judgment of the district court.
I.
The facts underlying Archie’s conviction are undisputed.
On October 19, 2011, Archie entered a Family Dollar store with a
firearm and demanded money from the cashier. He fled the scene
with $187, but security cameras captured the robbery showing
Archie. Several days later, police executed a search warrant on
his home where the firearm used during the robbery was
recovered. Archie later confessed to the Family Dollar robbery
along with an unsolved bank robbery.
A federal grand jury indicted Archie for possession of a
firearm by a convicted felon in violation of 18 U.S.C. §§
922(g)(1) and 924 (Counts One and Four); Hobbs Act robbery in
violation of 18 U.S.C. § 1951 (Count Two); using and carrying a

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firearm in furtherance of a crime of violence in violation of 18
U.S.C. § 924(c) (Counts Three and Six); and armed bank robbery
in violation of 18 U.S.C. § 2113 (Count Five).
In a written plea agreement, Archie agreed to plead guilty
to Counts One, Two, and Three of the indictment in exchange for
dismissal of the remaining charges. Under the terms of the plea
deal, Archie agreed
[t]o waive knowingly and expressly all
rights, conferred by 18 U.S.C. § 3742, to
appeal whatever sentence is imposed,
including any issues that relate to the
establishment of the advisory Guideline
range that is established at sentencing, and
further to waive all rights to contest the
conviction or sentence in any post[-]
conviction proceeding[.]
(J.A. 29.) The plea agreement advised Archie of the statutory
sentencing range for each charge and noted that, based on his
criminal history, he could face a sentencing enhancement under
the ACCA. Pertinent to this appeal, Archie and the Government
also acknowledged that the statutory minimum penalty for the
firearm offense in Count Three would be “7 years.” (J.A. 34.)
At the ensuing plea hearing, Archie affirmed that he had
discussed the case with his attorney and was “satisfied with
[his] law work.” (J.A. 20.) After finding Archie competent to
proceed, the district court explained the appeal waiver and the
rights forfeited by pleading guilty. Archie acknowledged that
he understood. Continuing its reference to the terms of the

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plea agreement, the district court described the charges and the
potential penalties for each offense. With regard to Count
Three, the court noted that Archie could face a penalty of
“seven years to life.” (J.A. 21-22.) But the court also
recognized that the seven-year minimum sentence applied only
when the firearm was “brandished” during the crime, see 18
U.S.C. § 924(c)(1)(A), and the indictment did not assert
brandishing as a separate element. Accordingly, the district
court asked the Government whether it needed “to allege in the
indictment that [the gun] was brandished in order for [the
minimum] to be seven years[.]” (J.A. 23.) Citing the
appropriate applicable law at the time, Government counsel
responded that brandishing was a “sentencing factor that [did]
not have to be specifically alleged [in the indictment.]” (Id.)
Defense counsel did not object. The district court then
accepted Archie’s guilty plea, finding it freely and voluntarily
entered.
In preparation for sentencing, the United States Probation
Office prepared a presentence investigation report (“PSR”). The
PSR designated Archie an armed career criminal under the ACCA
based on three prior felony convictions: a 1977 third-degree
robbery conviction from New York; a 1983 attempted burglary
conviction from New York; and a 1994 assault conviction from
North Carolina. The ACCA designation caused the statutory

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minimum sentence for Counts One and Two to increase to 180
months. As the parties contemplated at the time of the plea,
the PSR also included an 84-month minimum sentence for Count
Three because the investigatory evidence established that Archie
had indeed brandished the firearm during the Family Dollar
robbery. After several other adjustments not relevant here, the
PSR calculated Archie’s total offense level at 30 and his
criminal history category at IV. That resulted in a guidelines
sentencing range of 135 to 168 months, falling below the
statutory minimums noted above.
Before sentencing, Archie objected to his career offender
designation under the ACCA, arguing that the Government lacked
adequate factual support for the New York third-degree robbery
conviction. Archie contended that several of the computerized
records relied upon to establish this conviction contained
inconsistent dates, and one document included a criminal
indictment number tied to another defendant. According to
Archie, these inconsistencies, when coupled with the age of the
conviction, “insert[ed] the possibility [of] more than just
scrivener’s error but, indeed, wholesale mistake.” (J.A. 41.)1
1 Archie also contested the 1983 conviction on similar
grounds, but withdrew that objection before the sentencing
hearing. Archie makes no argument as to the 1983 conviction on
appeal.

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The district court overruled Archie’s objection, concluding
the Government’s records were sufficient to establish the New
York conviction by a preponderance of the evidence. Adopting
the PSR, the district court sentenced Archie to the mandatory
minimum - 180 months’ incarceration for Counts One and Two and a
consecutive 84 months’ incarceration for Count Three.
Four months after Archie’s sentencing, the Supreme Court
decided Alleyne v. United States, 133 S. Ct. 2151 (2013). In
Alleyne, the Court overruled existing precedent and held that
“any fact that increases the mandatory minimum is an ‘element’
that must be submitted to the jury” and found beyond a
reasonable doubt. 133 S. Ct. at 2155. In Alleyne, as here, the
defendant was convicted of using a firearm during and in
relation to a crime of violence under 18 U.S.C. § 924. Id. The
district court in that case concluded the mandatory minimum for
the charge was 84 months based on its finding by a preponderance
of the evidence at sentencing that a firearm was “brandished.”
Id. at 2156. The Supreme Court reversed and vacated the
defendant’s sentence because the “[j]udge rather than the jury,
found brandishing, thus violating [his] Sixth Amendment rights.”
Id. at 2163-64.
Archie timely appealed, and this Court has jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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II.
Archie raises two issues on appeal. First, he argues the
district court violated his Sixth Amendment rights as set forth
in Alleyne when it raised the statutory minimum sentence for his
firearm conviction based on a judicial finding of brandishing.
Second, Archie contends the Government presented insufficient
evidence to sustain his career offender designation under the
ACCA.
A.
We first consider whether Archie waived the right to argue
on appeal that the district court improperly enhanced his
sentence based on judicially determined facts in violation of
Alleyne.
It is well settled that a criminal defendant may waive the
statutory right to appeal his sentence. See United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992); United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Where, as here, the
Government seeks enforcement of an appeal waiver and there is no
claim that the Government breached its obligations under the
plea agreement, the waiver will be enforced to preclude a
defendant from appealing a specific issue if the record
establishes that the waiver is valid and the issue being
appealed is within the scope of the waiver. United States v.

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Attar, 38 F.3d 727, 731–33 (4th Cir. 1994); see also United
States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (“An
appellate waiver is valid if the defendant’s agreement to the
waiver was knowing and intelligent.”).
Archie does not contest the validity of his appeal waiver,
and the record confirms that it was knowing and voluntary. See
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013)
(concluding defendant knowingly and intelligently waived his
right to appeal where, during the plea colloquy, he affirmed
“that he had ‘read and discuss[ed] [the] entire plea agreement
with [his] lawyer’ before signing it, and that he ‘underst[ood]
each term’ in it.” (alteration in original)). Archie’s sole
challenge is that his Alleyne claim falls outside the scope of
the appeal waiver. It does not.
At the time of Archie’s sentencing, Supreme Court precedent
dictated that factors triggering mandatory minimum sentences
“need not be alleged in the indictment, submitted to the jury,
or proved beyond a reasonable doubt.” Harris v. United States,
536 U.S. 545, 568 (2002); see Alleyne, 133 S. Ct. at 2155 (“In
Harris . . . this Court held that judicial factfinding that
increases the mandatory minimum sentence for a crime is
permissible under the Sixth Amendment.”). Accordingly, the
district court correctly applied the law under Harris by
enhancing Archie’s minimum sentence based on its finding that

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Archie had brandished a firearm. Although Alleyne later
overruled Harris after Archie’s sentencing hearing, that post-
sentencing change in the law does not void Archie’s appeal
waiver.
We addressed the proper scope of an appeal waiver in light
of a subsequent change in the law in United States v. Blick, 408
F.3d 162 (4th Cir. 2005). There, the defendant entered into a
plea agreement and was sentenced before the Supreme Court
decided United States v. Booker, 543 U.S. 220 (2005). Despite
an appeal waiver provision barring him from appealing “any
sentence within the maximum provided in the statute of
conviction,” Blick argued on appeal that he should be
resentenced in light of the change in the law that Booker
effected. Blick, 408 F.3d at 169. We concluded Blick’s claim
was within the scope of his valid appeal waiver because,
“[a]lthough the law changed after Blick pled guilty, his
expectations (as reflected in the plea agreement) did not.” Id.
at 173. Indeed, “Blick was sentenced precisely in the manner
that he anticipated.” Id. We emphasized that “[p]lea bargains
rest on contractual principles, and each party should receive
the benefit of its bargain.” Id. Consequently, a party
“‘cannot . . . ask to re-bargain the waiver of his right to
appeal because of changes in the law.’” Id. at 170 (quoting
United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005)).

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“A plea agreement, like any contract, allocates risk.”
United States v. Johnson, 410 F.3d 137, 153 (4th Cir. 2005).
“And the possibility of a favorable change in the law occurring
after a plea is one of the normal risks that accompan[ies] a
guilty plea.” United States v. Sahlin, 399 F.3d 27, 31 (1st
Cir. 2005). Archie assumed this risk in exchange for the
Government’s concessions, and he was sentenced in exactly the
manner agreed upon. If we declined to enforce Archie’s appeal
waiver because of a subsequent change in the law, we would
deprive the Government of the benefit of its bargain and
frustrate the purpose underlying such contracts.
Archie’s assertion that he is entitled to the benefit of
Alleyne on appeal is indistinguishable from the appellant’s
argument in Blick. Archie expressly waived his right “to appeal
whatever sentence . . . imposed,” along with “all rights to
contest the conviction or sentence in any post conviction
proceeding[.]” (J.A. 29-30.) Like the appellant in Blick,
Archie received a sentence that fully complied with the law
applicable at the time, “precisely in the manner he
anticipated.” 408 F.3d at 173. Consequently, Archie cannot
invalidate his appeal waiver to claim the benefit of
subsequently issued case law even if it suggests his sentence
now would be different.

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Notwithstanding the foregoing, Archie contends that his
Alleyne claim falls “within the narrow class of [errors] that we
have allowed a defendant to raise on direct appeal despite a
general waiver of appellate rights.” United States v. Lemaster,
403 F.3d 216, 220 n.2 (4th Cir. 2005). According to Archie,
“proceedings which affect Constitutional rights and fundamental
fairness,” such as the instant claim, “fall outside the scope of
such waivers.” (Reply Br. 2.)
To be sure, in limited circumstances, “a knowing and
voluntary waiver of the right to appeal cannot prohibit [a]
defendant from challenging a few narrowly-construed errors.”
Johnson, 410 F.3d at 151. However, we have reached this result
and declined to enforce a valid appeal waiver only where the
sentencing court violated a fundamental constitutional or
statutory right that was firmly established at the time of
sentencing. Such is not the case here. See Attar, 38 F.3d at
732–33 (holding that a valid appeal waiver does not bar review
of a post-plea violation of the right to counsel); United States
v. Broughton–Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995)
(finding defendant’s claim that the district court’s restitution
order was statutorily barred fell outside appeal waiver). These
limited exceptions were permitted on the narrow grounds that “a
defendant’s agreement to waive appellate review of his sentence
is implicitly conditioned on the assumption that the proceedings

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following entry of the plea will be conducted in accordance with
constitutional limitations.” Attar, 38 F.3d at 732. Clearly,
the rationale underlying these cases is absent when the alleged
error stems from a subsequent change in the law and not a
failure by the court to apply the established law at the time of
sentencing. Accordingly, we have never permitted a criminal
defendant to avoid a valid and applicable appeal waiver by
claiming error based on a subsequent change in the law.
In short, defendants cannot knowingly and voluntarily enter
an appeal waiver, receive a sentence that fully complies with
the law applicable at the time of sentencing, and then, when
that law later changes, argue that the issue falls outside the
binding scope of the waiver. Notwithstanding the Government’s
concession during oral argument that Archie’s sentence would now
be different under Alleyne, we deny his claim because it falls
within the scope of the valid appeal waiver.
B.
The ACCA mandates a minimum fifteen-year prison sentence
for a person convicted of unlawful possession of a firearm who
“has three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another[.]” 18 U.S.C. § 924(e)(1). Thus, to apply the
ACCA enhancement, the court must find: (1) that at least three

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prior convictions exist, (2) that those convictions were for
either a violent felony or a serious drug offense, and (3) that
the prior offenses were committed on different occasions from
one another. Id. The prosecution bears the burden of
establishing these elements by a preponderance of the evidence.
See United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009),
abrogated on other grounds as stated in, United States v.
Aparicio-Soria, 740 F.3d 152, 155-56 (4th Cir. 2014); see also
United States v. Thompson, 421 F.3d 278, 283-85 (4th Cir. 2005).2
The PSR filed in the district court identified three ACCA
qualifying convictions: a 1977 third-degree robbery conviction
from New York, a 1983 attempted burglary conviction from New
York, and a 1994 assault conviction from North Carolina. Archie
does not dispute that these offenses constitute violent felonies
within the meaning of the ACCA for a defendant convicted of such
crimes or that the offenses listed were committed on different
occasions. He only challenges whether the Government presented
sufficient evidence for the district court to find that the
third-degree robbery conviction in fact exists. Pointing to
2 The Government declined to rely on the appeal waiver with
respect to Archie’s second claim - that the district court erred
in sentencing him as an armed career criminal under the ACCA.
Accordingly, we review this claim of error on its merits. See
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)
(noting the government can elect not to enforce an appeal waiver
and instead contest the merits of a defendant’s argument).

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discrepancies in the documents underlying the PSR, Archie argues
that the Government’s evidence is insufficient to prove the fact
of conviction as to him. Since this is a purely factual
dispute, we review the district court’s judgment for clear
error. See United States v. Wardrick, 350 F.3d 446, 451 (4th
Cir. 2003).
In siding with the Government and finding that Archie was
convicted of the New York third-degree robbery, the district
court relied on four documents: a computerized printout from the
New York Department of Corrections (“Appendix A”); a Certificate
of Disposition from the clerk of the Supreme Court of the State
of New York, Kings County (“Appendix B”); a Report of
Investigation from the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“Appendix C”); and a computerized form from the New
York Supreme Court Criminal Term Correspondence Unit (“Appendix
D”). (J.A. 44-51.)
Appendices A, B, and C each provide that Archie was
convicted of third-degree robbery in 1977 in Kings County, New
York. Appendix A states that Archie entered the New York penal
system for this charge on July 11, 1977, but does not show the
date of conviction or docket number. Appendix B lists a
conviction date of June 9, 1977 and sentencing on the same date.
Appendix C, on the other hand, provides a conviction date of
June 13, 1978. Appendices B, C, and D each identify the same

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docket number, “3611-76,” and list Archie as the offender.
(J.A. 47-51.) Appendix D also recognizes an inaccuracy in
Appendix C, stating that one of the other docket numbers linked
to Archie in Appendix C “was not the same defendant.” (J.A.
51.) In sum, Appendices A, B, and D each provide consistent
accounts of Archie’s conviction for third-degree robbery,
whereas Appendix C provides a conflicting conviction date.
Archie points to our decision in United States v.
Martinez-Melgar, 591 F.3d 733 (4th Cir. 2010), for the
proposition that reference to secondary records, such as those
described above, to determine the existence of a prior
conviction is only allowed when “‘there is no indication
whatever that the state records are inaccurate.’” (Opening Br.
at 14 (quoting Martinez-Melgar, 591 F.3d at 739).) But, as we
have since indicated, this language from Martinez-Melgar must be
considered in context and does not sweep so broadly. See United
States v. Washington, 629 F.3d 403, 412-13 (4th Cir. 2011).
In Washington, this court examined the very question at
issue here – what records may the district court consider in
determining the fact of a defendant’s prior conviction. Id.
Washington held that a sentencing court can rely on materials
such as certified computer printouts to prove the fact of a
prior conviction. Id. at 413 (“[T]he district court was
entitled to consider what it did, including the printouts of

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docket materials, in determining merely the specific offense to
which [the defendant] pled guilty. In keeping with this
distinction, courts have routinely used such documents in
determining the mere existence of a conviction.” (footnote
omitted)). The court further affirmed the district court’s
reliance on such materials notwithstanding several
inconsistencies in the documents. Id. Accordingly, despite
Archie’s contention otherwise, there is no prohibition on
secondary records simply because they may contain discrepancies
regarding a prior conviction.
Archie nevertheless argues that the Government “failed its
burden because the conviction they projected upon [him] was
indeterminately dated, premised upon secondary records, and even
those records were contradictory and unreliable.” (Opening Br.
15.) We are unpersuaded.
When called upon to determine the existence of a prior
conviction for sentencing purposes, a district court can engage
in permitted “fact-finding in a routine and conscientious sense”
even if “inconsistencies and clerical mistakes [exist] in state
records[.]” Washington, 629 F.3d at 414-15. That is precisely
what occurred here. The district court weighed the evidence and
reasonably found that the same named defendant, Archie, was
convicted of third-degree robbery in 1977 in Kings County, New
York based upon the information in all the underlying documents,

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the conviction date listed in Appendix B, the consistent
incarceration date in Appendix A, and the uniform docket
numbers. (See J.A. 67 (“[I]f you follow the records that the
Government has submitted, it looks like all the crimes charged
were charged in ‘76. It appears to me that he had a plea in ‘77
and then a sentence in ‘78. At least that’s the way it looks to
me.”).) We see no clear error in this conclusion. See United
States v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (“A court
reviewing for clear error may not ‘reverse . . . [unless], on
the entire evidence, it is left with the definite and firm
conviction that a mistake has been committed.’” (citation
omitted)).
When faced with records that contain inconsistencies, this
court has concluded that certain discrepancies, such as
different dates of the same offense, “do not upend the trial
court’s sound conclusion” when there is additional evidence to
“indicate the . . . erroneous date . . . is [likely] a
scrivener’s error.” Washington, 629 F.3d at 413. We therefore
decline to disturb the district court’s finding.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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