### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3521

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ARRYL A NTHONY W ORTHEN

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, New Albany Division.

No. 15

‐ cr

‐ 00006

— Sarah Evans Barker

, Judge

.

____________________

A RGUED O CTOBER 28, 2016

— D ECIDED N OVEMBER 28, 2016

____________________

Before R IPPLE

, K ANNE

, and R OVNER

, Circuit Judges

.

K ANNE

, Circuit Judge

. As a FedEx driver, Darryl Worthen

delivered packages to Scott Maxie—the owner of a gun store

in southern Indiana called Muscatatuck Outdoors. Worthen

and Maxie knew each other well, as they often conversed dur

‐ ing the deliveries. Worthen even considered Maxie to be a

friend. But unfortunately, their friendship wasn’t strong

enough to withstand Worthen’s greed. Worthen decided to

rob Maxie—and he exploited their friendship to do it.2 No. 15

‐ 3521

On September 20, 2014, Worthen called Maxie to set up a

meeting under the guise of making a gun trade. But the true

purpose of this meeting was to give Worthen and his confed

‐

erates—his brother DeJuan and cousin Darion Harris—an op

‐ portunity to case Maxie’s store. That afternoon, the three

drove 76 miles from Indianapolis to the store, devising a plan

to rob Maxie along the way. They met with Maxie for almost

an hour, surveyed the store, and then left.

They returned the next day. This time, they brought along

backpacks to carry the firearms that they planned to steal.

During their drive, they decided not only to rob Maxie but

also to kill him. To that end, Worthen brought a .22 caliber

handgun. When they arrived at the store, Worthen conversed

with Maxie. During their conversation, Worthen pulled out

his handgun, pointed it at Maxie’s face, and shot him in the

eye, killing him.

The men then grabbed 45 firearms and loaded them into

their backpacks. Worthen also stole Maxie’s laptop, which was

recording the video feed from the store’s surveillance cam

‐

eras. They then left the store, heading back to Indianapolis. En

route, Worthen threw the murder weapon and laptop into a

cornfield.

On September 22, 2014, police officers arrested Worthen,

DeJuan, and Harris. The officers found only four of the stolen

firearms in Worthen’s possession. Worthen and his confeder

‐

ates had already distributed most of the firearms throughout

Indianapolis. Indianapolis police officers found one of the

firearms in October 2014 when executing a search warrant for

drugs. And they discovered another firearm in February 2015

when investigating a shooting. In total, 36 of the 45 stolen fire

‐

arms remain unrecovered.No. 15

‐ 3521 3

On March 11, 2015, a grand jury indicted Worthen on four

counts: (1) Hobbs Act robbery under 18 U.S.C. §§ 1951(a) and

2; (2) conspiracy to commit Hobbs Act robbery under 18

U.S.C. § 1951(a); (3) causing death while using or carrying a

firearm during a crime of violence under 18 U.S.C. §§ 924(j)

and 2; and (4) stealing firearms from a federal firearms licen

‐

see under 18 U.S.C. § 922(u). Hobbs Act robbery carries a

prison term of up to 20 years, 18 U.S.C. § 1951(a); and a con

‐

viction on a crime

‐ of

‐ violence charge authorizes a sentence of

death or life imprisonment, 18 U.S.C. § 924(j)(1). Worthen en

‐

tered into a plea agreement with the government under which

he agreed to plead guilty to these two charges and further

agreed to waive his appeal rights. In exchange, the govern

‐

ment agreed to drop the other charges and promised to not

seek the death penalty.

The district court held the sentencing hearing on Novem

‐

ber 2, 2015. There, Worthen apologized to Maxie’s family, and

his attorney offered several mitigating factors, including

Worthen’s acceptance of responsibility, his difficult life cir

‐

cumstances, and his low risk for future violence. The govern

‐

ment’s response centered on the heinous nature of the crime,

the suffering that Maxie’s family had endured, and the havoc

that the stolen firearms were wreaking on the Indianapolis

streets. After considering the arguments, the court sentenced

Worthen to 10 years for the Hobbs Act robbery and 50 years

for the crime of violence for a total of 60 years’ imprisonment.

Irrespective of the appeal waiver, Worthen now appeals

his conviction, arguing that Hobbs Act robbery—the predi

‐

cate offense for Worthen’s § 924(j) conviction—is not a “crime

of violence” as the statute defines that term. Thus, Worthen

contends that his § 924(j) conviction is invalid.4 No. 15

‐ 3521

Before we can address this argument, Worthen must con

‐

vince us that he has not waived his right to an appeal. Gener

‐ ally speaking, appeal waivers are enforceable and preclude

appellate review. United States v. Sines

, 303 F.3d 793, 798 (7th

Cir. 2002). Even so, we have recognized a few narrow excep

‐

tions to this rule—one of which is that a defendant may al

‐

ways contest a sentence that exceeds the statutory maximum

for the crime committed. United States v. Smith

, 759 F.3d 702,

706 (7th Cir. 2014). This makes perfect sense. When a defend

‐

ant pleads guilty to a crime and waives his right to an appeal,

he acquiesces to the court’s discretion to impose a sentence

that he knows will fall within a specified statutory range. In

‐

deed, that’s what makes the waiver knowing and intelligent,

and thus enforceable. But if the court disregards that permis

‐

sible sentencing range and imposes a sentence exceeding that

which the defendant knew was the harshest penalty he could

receive, then there is no knowing and intelligent waiver at all.

United States v. Gibson shows as much. 356 F.3d 761 (7th

Cir. 2004). There, the defendant pled guilty to violating 18

U.S.C. § 371—conspiracy to commit mail and wire fraud. The

district court sentenced him to 262 months, even though the

crime carried a maximum penalty of only 60 months. Alt

‐ hough he waived his appeal rights, we allowed him to appeal

his sentence, noting that we could not enforce a sentence that

the law does not authorize. Id

. at 763–66.

Worthen contends that Gibson ’s rationale applies here, too.

Specifically, he notes that he received 60 years’ imprisonment

for committing both a robbery and a crime of violence, but the

crime

‐ of

‐ violence conviction is invalid. That leaves only the

robbery conviction, which carries a maximum sentence of 20

years’ imprisonment. 18 U.S.C. § 1951(a). Accordingly,No. 15

‐ 3521 5

Worthen argues that, because his 60

‐ year sentence exceeds the

statutory maximum for the only viable conviction, we should

allow his appeal.

This argument misconstrues our holding in Gibson —a case

that is easily distinguishable from this one. True enough, in

Gibson

, we considered the defendant’s appeal—irrespective of

his appeal waiver—after concluding that his sentence ex

‐

ceeded the statutory maximum. But reaching that conclusion

required nothing more than comparing the sentence that the

statute allowed to the sentence actually imposed. It did not

require us to determine that the underlying conviction was

invalid beforehand, as Worthen would have us do here.

And that distinction matters. To be clear, the crux of

Worthen’s argument is that the validity of his appeal waiver

depends on the validity of his conviction. That argument is

entirely circular. Indeed, to determine whether Worthen’s

crime

‐ of

‐ violence conviction is invalid, we would have to take

the appeal in the first place. Then, only if we agree with

Worthen and conclude that his conviction is in fact invalid

would we find that Worthen’s sentence exceeds the statutory

maximum, which in turn would mean that Worthen did not

waive his appeal rights. So the rule would be that an appeal

waiver is enforceable unless the appellant would succeed on

the merits of his appeal. That cannot be the law.

For if that were the law, then appeal waivers would lose

all effect. That’s because we would have to consider an ap

‐ peal’s merits in every case. In doing so, if we were to conclude

that the defendant’s conviction was not valid, then any sen

‐

tence imposed necessarily would exceed the statutory maxi

‐

mum because there can be no punishment without liability;

in that scenario, we would hold that the defendant did not6 No. 15

‐ 3521

waive his right to an appeal. And if we were to conclude that

the defendant’s conviction was valid, then we would dismiss

the appeal as waived so long as the sentence falls within the

permissible statutory range; in that case, the appeal waiver

would be irrelevant because we would have decided the ap

‐ peal on the merits anyway. Consequently, this rule would

eviscerate the right to waive an appeal.

Apart from contravening our longstanding precedent that

appeal waivers are generally enforceable, such a rule would

have perverse consequences. Many criminal defendants

might benefit from waiving their appeal rights. In fact,

Worthen so benefitted: in exchange for foregoing his appeal

rights, the government agreed to drop some of the charges

and further agreed to not seek the death penalty. Worthen per

‐ haps saved his life by waiving his appeal rights. If Worthen

could then renege on his deal and maintain an appeal, then

why would the government make these kinds of deals in the

future? Why wouldn’t the government instead just charge de

‐

fendants like Worthen with all applicable crimes and see what

sticks after the appeal? Worthen’s proposed rule is as undesir

‐

able as it is nonsensical.

Here, Worthen “expressly waive[d] his right to appeal

[his] conviction and sentence

... on any and all grounds.” (R.

45 at 4.) His waiver precludes an appeal. We accordingly

DISMISS Worthen’s appeal without considering the merits.