at the outset we want to welcome all of you know our court and to introduce to you and welcome our visiting judge who's been helping with us with our work this week judge paul hock who has sat with great distinction on the united states district court for the southern district of florida for many years he was appointed in two thousand by president bush i think it was maybe it was president clinton who was just at the very end of the clinton administration but in two thousand so he served almost twenty years on that court and still does and he sat with our court on many occasions and sat again for those of you who may not have appeared before our court before you'll notice our lighting system it's really not different from most of the other appellate courts there's a clock that will tell you how much time you used and there is a green amber and red light green means of course you may proceed the amber or yellow light is a two minute warning the red light is an indication that your time is up and we much appreciat if you could bring your remarks to a conclusion when that red light goes on as i've said you need not stop dead in the middle of a sentence and not finish it of course but if you could bring it to a conclusion that would be much appreciat e said regularly one of my colleagues many years ago said to me and explained every time he appeared in court in presided he said that red light is an aspirational mark don't forget so i pass it on rd and last observation as you proceed with your argument you may safely assume we've had a chance to review the briefs the record excerpts and in many of the instances we've had a chance to review the record as well so as you shape your arguments feel free to go right to the heart of your argument with that we'll proceed with the st case the united states versus  t the morning may please the court good morning an ambiguous term of an appeal waiver must be construed in favor of the defendant for his waiver to be knowing and the voluntary that simple rule should resolve the government's motion to dismiss today the parties negotiated an appeal waiver containing an exception to the place quote in the event that that this recording poses a sentence that exceeds the advisory guideline range  the defendant understood that to mean and our office has always understood that to mean the correct the objective lea correct advisory guidelines range that is that who determines the object of lee correct advisory guideline range i i think that the issue in an appeal waiver in if the issue is waived it would be the district court gets the final word on that but if it's not then the defendant can seek to ask this court to evaluate that the terminations and so i think it to be a district court to make it clear and it's discussions with mr boyd that in fact this would be the advisory guideline range would be calculated by the district court the court said i will calculate the advisory guideline range didn't the court make this abundantly clear that that's who was going to be calculating the advisory guideline range yes i think the court made it abundantly clear that that was the court's sentencing discretion other words that it didn't and he also he also said i can see his you in excess of that range but i don't think the court was purporting to discuss the scope of the appeal waiver and that worked i think it's perfectly consistent for the court to do that and then for a later there to be an appeal waiver that reserves the right to dispute the guidelines range when the sentence exceeds what the defendant argues is  correct guideline rate so if you use a what the government bargain for was an agreement that if you thought that judges calculus or the guideline range was wrong then you could appeal to the whip in basically the bargain itself was the government said yeah you can make your own independent terminations regardless of what the judge says about the sentencing guidelines calculus if you think that calculation is wrong then you're free to appeal the calculation itself i agree with two limiting factors one is that it still has to impact the sentence in one case where this court granted a government motion to dismiss the defense even under the defendant's calculation his sentence was within the guidelines range and nd of course that the parties can't stipulate to permit a defendant to pursue a frivolous appeal so it would have to be a good thing want buy your theory it has to word it where's the good faith written into it your theory is that they didn't understand that it was the guideline determination as determined by the sentencing judge your theory is we should read the agreement as the guideline range we can disagree with that so long as our disagreement is theoretically plausible or reasonable if the dispute falls within the goalposts if you will we were free to challenge the very thing they thought they were bargaining for and yes my theory i mean your theory has to be that i mean maybe they could have made the agreement even crystal clear to say as determined by the trial judge and my suspicion is you'll find from this case are on that every one of their agreements will say that but that doesn't answer this question and we're already moving towards that it as i see this is problematic language less and less often but i think that there were two objectives a reasonable interpretations of that phrase which is what makes it and big of this and triggers the role that we should construe an ambiguous waiver position on the guidelines is that all reasonable or plausible and the district judge disagreed then we were free to appeal the guideline sentence as calculated by the district court if it impacts is the ultimate sen sure i mean obviously we wouldn't be having the debate affrighted right that that is the the way we have understood that language and i know i don't think it will know that happened in this case but i know that there are occasions where a defend o no i was i was i'm referring to a published case just cases within our office where i believe that those negotiations specifically happened in order to preserve that that issue for appeal  think that the government's interpretation is a little bit more specialized because it requires some context to understand it the context being this is how sentencing normally works and a i said i think that context is an inappropriate where what exactly what the question is is under what circumstances the district court's word is the last word but aren't you asking us to read that into the language to it because it seems to me and i keep getting back to the language itself that it i agree it doesn't say as calculated by the district court but you would agree that the district court calculates the guideline range yes  then if there was an appeal if there if we didn't have an appeal waiver situation then the court of appeals could look at that again her and determine it but there's nothing even though there's an appeals process assuming we don't have an appeals waiver there's nothing that again cuts back on the fact that the district court calculates the guideline range correct so with that i don't i don't understand how the language works for you it is necessarily calculated by the district court i think that a defendant could reasonably understand it to mean outside of the context of the way sentencing procedure works we're talking about a what an objective lee correct guideline range that perhaps the district work out wrong i think that would be the the plain meaning of the phrase the advisory guideline range the government's interpretation is that it's essentially a waiver of all appeals except for a part departures or upward variances and of course that language would have made that unequivocal but that isn't the language that the parties bargained for in this case i mean answer a question about this when we look at the meaning of the words we're looking at a contract an agreement between two parties and trying to discern its meaning are we friedel also looking at the color wheel between the judge and the parties in one sense that it was pure contract interpretation we'd call that parole evidence can we look at that i think we have cases that say we can but i just want to get your sense on that  dialogue between the lawyer and the defendant and the judge and the prosecutor correct the stuff that they say to each other that arguably gives some you've got a right to appeal period it's unvarnished but if you enter into this agreement say for these exceptions you have a band and given up waived your right to an appeal so we we  choir the court for good reason to really make sure the defendant understands what he's giving up i'm just asking whether we can also look at the comment that i'm talking about and in particular the period at nine in ten of the week the judge says and i quote i want to make sure you understand that those guidelines are advisory and not mandatory on me as a sentencing judge and then he says and this is really the critical language that i wanted you to help me with he says in other words i will calculate the guidelines the advisory guideline range and i will consider that range using it as a guide along with other factors in deciding what your ultimate sentence will beit but i'm not required by the law or necessarily to what sense you within the range that means that your senses could be outside the range but he explains the judge explains that the judge bears the burden and intends to exercise its responsibility to calculate the advisory guideline range i've again i believe that that is limited to a comment bring concessions from the government that result in a significantly reduced sentence when the government's primary benefit here with to not have to really get that nd the nd time on appeal he had one bite at the apple that bite at the apple is at sentencing where he was free to raise any sentencing objections he wished and then the district court as a just report clearly explained to mr boyd during the plea colloquy would determine the appropriate guideline range and impose a sentence and pursuant to the plain language of the parties plea agreement mr boyd had forever waived any right to an appeal in any court unless the district court's ultimate sentence exceeded that guideline range of course you could have solved the whole problem by simply adding three words as determined by the judge or the fair ambiguity about that is exactly right i think it doesn't create any ambiguity for three reasons i think one the interpretation that's proposed by mr boyd which is mr boyd and not the trial court is the ultimate  advisory guideline range is twist the ordinary natural meaning of the words in the bleed remit and i don't just mean in terms of the appeal waiver itself i mean the corresponding appeal with a provision in the plea agreement that makes clear that it is the district court and i believe this was brought up  during opposing counsel time that the district court is the one who determines what the advisory guideline range is and that a time that a defendant pleads guilty he doesn't know what his sentence will ultimately be nevertheless he can make a knowing and voluntary waiver of his right to appeal he knows the sentencing guidelines have been explained to you that is exactly correct yes your honor he knows the rules of sentencing and as set forth in the police called way the district court here took care to make sure that he understood what the sentencing guidelines were that his his attorney and discussed that with them and that he understood how the sentencing guidelines could play out this case meaning his sentence could be more severe or less severe and that nevertheless he shouldn't plead guilty based on any estimate he had received  it would be the united states position that you must look at the totality of the circumstances for lack of a better phrase which would be both the plain language of the plea agreement and then you must also look at the discussion that took place during the play call of course if you were applying just normal principles of contract law you would only look to extremes a caverns if you came away with the sense that the text was sufficiently unclear that it didn't provide a clear answer to the problem so we would look to the to the caller quickly if there was an ambiguity that's really his argument the very looking to extremes that governs tells you there's a problem and the problem is we don't really know with certainty it's more likely than not maybe that it just doesn't make sense that he would have bargained away your interests here on the femur all notion that he still has the whip and to challenge and only if it's only if his argument about the calculus was frivolous would he have that that's all that's the only consideration he was given you didn't make any sense but we're looking for maybe more clarity than that well i think even looking at the permits a defendant to appeal generally speaking is to appeal erroneous guidelines calculations however what the whole premise of how a sentencing process works and how a plea process works is that a district court in most instances gets it exactly right and the person who is the ultimate arbiter of the guideline range and that's what the police and also makes clear here is the district court so i think really the crux of the issue comes down to does the plea agreement even viewed in isolation indicate that the ultimate decider of whether an appeal is frivolous or whether an issue is meritorious or whether the guideline range is correct is a defendant as opposed to the district court and the answer to that is obviously now that is not a fair reading of the plea agreement that's a strange interpretation that's not supported by the plain language or common sense for that matter under that interpretation the appeal waiver becomes effectively meaningless because it's an unlimited an invitation for any creative defense lawyer to think of any cognize of all guidelines issue and then say well it's in what was the consideration you got for entering into the bargain or did you keep by pleading guilty he saved the government two things the right to the time and resources that would be necessary to take the case to trial and secondarily he saved the government the time and resources necessary to prosecute this appeal now what's interesting about this case and it's sort of illustrated by united states versus norman which is a case that the government cited yesterday in a supplemental already filing is sort of what happens when this goes askew so in united states versus norman it's a similar case it's the same appeal waiver language it arrives out of our same district and what happened there is again the defendant is sentencing issues on appeal that the government belie barred by the exact same appeal waiver language so we moved to dismiss the fennec filed a response to our motion to dismiss we then replied this court carried that motion with the case so then we had briefing on the merits in addition a briefing on the motion to dismiss and ultimately what happened is the motion to dismiss was granted a year and a half later so all of the time and energy that we think we're bargaining to say we're not actually being saved here by individuals like mr boyd who are deciding that they are the ultimate arbiter of whether or not they have a meritorious appeal so not only does it raise the government's time and resources it also wastes this court's time and resources for something that was knowing and voluntarily waived by the defendant and the defendant had an opportunity before the district court determined the god lines range to object to the p s i i of court and to make the arguments necessary before the district courts the guidelines range so that the defendant had the opportunity there and sort of acknowledges that at that point the district court is going to make that decision isn't that correct yes your honor they get one bite at the apple when they waive the right to appeal i would also haste trial if that's what he wished to do but the problem here is you've got a defendant and mr boyd is not unique in the sense seeking to have it both ways seeking to have all the benefits that come along with pleading guilty you know three points for acceptance of responsibility  dismissal of other charges that have been indicted and then at the same time saying that but i'm not bound by any of the benefits that the government thinks that they have bargained for rather i get to be the party that decides not the district court whether or not i can keep litigat appeal and that simply not only does that not comport with the plain language of the plea agreement but even assuming that that interpretation that we're in the land of whether there was arguable ambiguity it just doesn't make any practical sense and  would we be free to abandon the plea agreement yes we would however i would add that we would it would also open the door to the other charges that were initially brought under stand all of that that's why i'm asking the question would you be freed  plead plea you don't want to plead go to trial and we'll just leave it all up to what a judge in a jury thinks would you have the power to do that yes and that i think  of sort of the the practical consequences of what it what is being urged here so i think again in this idea of you know however you want to say having your cake and eating it you are wanting it both ways what i think the defendant would tell you m boyd would say what should happen is if there's an arguable ambiguity don't send it back just sever they don't want to send him a position it's quite clear he said there's ambiguity we can't be bound we think the calculus was on reasonable go to the rd step in the waiver and that would be not only the discussion of the only exception to the appeal everitt that is at issue here i e that if i sentence you this is the district court within the guideline range you understand that you will not be able to appeal the nd would be the explanation that the district of the guideline range the rd would be that the defendant shouldn't plead guilty based on any estimate that he's received from anyone else and then the th would be that he satisfied with counsel and that he has read and understood plea agreement in its yes but with the caviar your honor we think yes under this language you are green that if the sentence is within the range that as determined by the district court at sentencing you have waived a right to an appeal but i would point out that that defendant in your hypothetical is not forgoing any potential  relief for two reasons one i think one avenue of relief that would still be available to that defendant would be to pursue a twenty dollars to fifty five dollars and in that instance the argument would be probably my defense lawyer was ineffective at sentencing because he didn't raise this obvious issue about the just report having got it wrong and s ever moving goal post in from the litigation or guess that's true and the other avenue and this does happen on occasion so for instance the what was at issue here that the sentencing issue that mr boyd seeks to raise on appeal it's charging party to a crime and whether or not george is party to a crime statute means that there are no longer any crimes of violence or serious drug offenses under the guidelines now if mr boyd had brought that issue up on appeal and in the interim this court it published a decision saying you know what we by george a party to a not you were bound to the district court's calculus of the guidelines if the answer is yes case over if the answer is no then we have to go back and have a briefing for the briefing on the substance of the arbiter of what the guidelines are the question is whether the district court is or the court of appeals is that the defendant doesn't decide that but the defendant is entitled to negotiate a appeal waiver even if it's a limited  one that even if exceptions very broad that preserves his right to appeal a broader array of guidelines issues  if it's a guidelines issued yet yes it is the guidelines issued but the only thing you gave up is the right to litigate a frivolous claim about the guard line calculation and the right to raise that through i have that right no your honor i we gave up the right to raise substantive reasonable miss the right to challenge whether the court used the statutory sentencing factors and of course this exist in a broader context where we have  other issue that i wanted to clarify one moment i don't think our clock is working let me just the other issue i wanted to clarify is that while i think the  reporting to do here and in fact there's a case such as how where this court is found the district court encouraged the defendant to appeal an issue although an appeal waiver applied in this court said that's dicta that is the court can't you know  appeal waiver so there's a limit to where right so we all agree the district court in the colquitt cannot change the basic terms right but in the colquitt the district court might explain fully the meaning of the terms that the parties had agreed to yes your honor and i would argue that the single question about the appeal waiver here didn't do that it replicated the same vague phrase the advisory guidelines range  believe so because i think it's just a very different context when he's describing his sense in discretion then when he's asking the defendant about the appeal waiver they negotiated it see the the last issue  i wanted to raise is that they're the government brought up the norman case and i think there's a obvious distinction there where the argument was that a failure to downward to give a downward variance was the functional equivalent of miscalculati the guidelines range that didn't even arguably qualify under any of the appeal waiver exceptions where the argument here is not a dispute of a downward variance but it's a dispute of the ultimate guideline range itself and so