Appeal from the United States District Court for the District of Arizona. D.C. No. CR-89-0348-RCB. Robert C. Broomfield, District Judge, Presiding.
Thomas Tang, Jerome Farris and Dorothy W. Nelson, Circuit Judges. Opinion by Judge Farris; dissent in part by Judge D. W. Nelson.
Robert Bolinger appeals his criminal sentence after pleading guilty to the charge of being a felon in possession of a firearm. Bolinger argues that the district court misapplied the sentencing guidelines and placed an impermissible condition on his supervised release. Bolinger's negotiated plea agreement expressly waived his right to appeal the sentence pursuant to 18 U.S.C. § 3742. We hold the waiver enforceable and thus do not consider his claims that the guidelines were misapplied. We also affirm the conditions the district court set for his supervised release.
Bolinger was indicted on four counts: conspiracy to distribute cocaine, aiding and abetting in possession with intent to distribute cocaine, carrying a firearm during a drug trafficking crime, and being a convicted felon in possession of a firearm. As part of a plea bargain in which the government agreed to drop the first three counts, Bolinger pleaded guilty to the last count on March 20, 1990. On May 29, he was sentenced to 36 months incarceration, 36 months supervised release, and a $3,000 fine. Part of his supervised release conditions included a prohibition on being involved in any motorcycle club activities.
The plea agreement contained two provisions relevant to this appeal. The first provision specifically waived the right to appeal the sentence.
5. Waiver of Defenses and Appeal Rights
Defendant hereby waives any right to raise and/or appeal any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the court's entry of judgment against defendant and imposition of sentence under Title 18, United States Code, section 3742 (sentence appeals).
The second provision set forth the negotiated terms of the sentence:
Defendant may be sentenced to a period of incarceration which is not to exceed 36 months. The parties agree that the Court may depart upward or downward under the sentencing guidelines. The court may, at its discretion, sentence defendant to a period of incarceration of between zero and thirty-six months, including a sentence of probation.
The court applied the guidelines and found an offense level of 12 with a criminal history of category IV, yielding a range of 21-27 months. It then departed from the range and imposed a sentence of 36 months based on three reasons:1) Bolinger's criminal history was under-represented; 2) the parties had stipulated in the plea agreement to a departure of up to 36 months; and 3) his connection to the drug transactions was a "close question."
Bolinger appeals his sentence, claiming that the district court improperly set out his offense level and then improperly departed from that level to 36 months. He also argues that he should not be prohibited from engaging in motorcycle club activities.
Whether the appellant waived his statutory right to appeal is a matter of law we review de novo. United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990).
18 U.S.C. § 3742(a)(2) permits the filing of a notice of appeal if the sentence was imposed "as a result of an incorrect application of the sentencing guidelines." Bolinger expressly waived the section 3742 right to appeal in his plea agreement.
There is no constitutional right to appeal. Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983). The right is purely statutory. Abney v. United States, 431 U.S. 651, 656, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977). We have held that an express waiver of the right to appeal in a negotiated plea of guilty is valid if knowingly and voluntarily made. United States v. Navarro-Botello, 912 F.2d at 322.
Navarro-Botello recognized a narrow exception to waiver of the right to appeal. We noted that waiver of the right to appeal "would not prevent an appeal where the sentence imposed is not in accordance with the negotiated agreement." Id. at 321. Bolinger seeks to circumvent his waiver by arguing that his sentence did not accord with his plea agreement. Bolinger contends that, because the plea agreement specified that he be sentenced under the guidelines, the alleged misapplication of the guidelines renders the sentence outside the negotiated agreement, thereby providing a basis for appeal under the Navarro-Botello exception.
We understand but reject Bolinger's argument. The plain meaning of the plea agreement is that Bolinger waived his right to appeal the sentence under section 3742 unless he received a term of incarceration in excess of 36 months. The sentence does not exceed the 36 month cap, therefore, ...