United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2004 Decided December 10, 2004

No. 03-3149

UNITED STATES OF AMERICA,

APPELLEE

v.

JAKE WEST,

APPELLANT

Consolidated with

No. 03-3150

Appeals from the United States District Court

for the District of Columbia

(No. 01cr00292-01)

(No. 02cr00218-02)

Jack R. Ormes argued the cause and filed the briefs for

appellant. Phillis Payne entered an appearance.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued

the cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, and John R. Fisher, Roy W. McLeese,

III, and Steven W. Pelak, Assistant U.S. Attorneys. Thomas J.

Tourish, Jr., Assistant U.S. Attorney, entered an appearance.
2

Before: GINSBURG, Chief Judge, and HENDERSON and

ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: Appellant Jake West pled

guilty to two charges related to the embezzlement of funds from

a union pension fund. He later asked the district court to allow

him to withdraw his plea; the court refused. West now urges us

to reverse that ruling, and also presents several challenges to his

sentence. We find that the district court did not abuse its

discretion in denying West’s motion to withdraw his plea. With

regard to the sentence, we decide that under the plea agreement

West has waived the right to appeal. Since he offers no reasons

why we should not treat the waiver as valid, we honor it and

uphold the sentence.

I.

Jake West is the former president of the International

Association of Bridge, Structural, Ornamental and Reinforcing

Iron Workers (IWU). In December 2001, the government

charged him in a 51-count indictment with conspiracy,

embezzlement from the IWU, making false statements in

Department of Labor (DOL) reports, and obstruction of justice.

The indictment alleged that West had appropriated union funds

for his personal benefit and had covered up his activities by

filing false and misleading reports with the DOL. A second

indictment, filed in August 2002, charged both West and a

former IWU General Secretary, LeRoy Worley, with conspiracy,

embezzlement from the union, and embezzlement from the

union’s pension fund. According to the government, West

arranged to have Worley paid a full pension from the IWU’s

retirement plan even though he did not meet the applicable
3

1

 Worley proceeded to trial and, after a mistrial for a hung jury,

reached an agreement with the government to have the charges

dismissed in exchange for restitution.

requirements; Worley, in exchange, dropped his bid to challenge

West for presidency of the union.

Trial on the charges contained in the second indictment

began with jury selection on October 15, 2002. Ten days later

the jury was sworn, and West changed his mind about going to

trial. He instead agreed to plead guilty to embezzlement from

a pension fund, 18 U.S.C. § 664, and to one count of making a

false statement in a DOL report, 29 U.S.C. § 439(b). In return,

the government dismissed all remaining charges against him.1

The plea agreement that West signed includes an

integration clause providing that “[t]he terms of this written

Agreement constitute the entire plea offer and agreement in this

matter.” Appellee’s Record Material (RM) at 7 (Plea

Agreement). The agreement twice recites that no “promises,

conditions, understandings, or agreements” have been made or

entered into by the government other than those in the

agreement itself. Id. at 8. The government “reserves allocution

or its right to speak at Mr. West’s sentencing,” id. at 5, and the

government and West “make no promises to one another and

make no agreement with one another with regard to defendant

West’s sentencing in these matters,” id. at 6. In addition, the

agreement states that “West understands that his sentence will

be imposed in accordance with the United States Sentencing

Guidelines.” Id. at 6. Finally, under the agreement West

explicitly waives the right to appeal his sentence unless the court

sentences him to a prison term in excess of the statutory

maximum or departs upward beyond the Sentencing Guidelines

range. Id. at 6–7.
4

The district court conducted a hearing to ensure that

West was aware of the terms of the agreement and that he was

entering his plea knowingly and voluntarily. West was

represented at this hearing by counsel. With respect to the

integration clause, the court asked West directly, “Other than the

promises in this plea agreement, are there any other promises

that have induced . . . you [to] plead guilty?” West responded,

“no.” Plea Hr’g Tr. at 20.

At the plea hearing, the government also proffered the

factual basis for its charges against West. As trustee of the

IWU’s retirement plan, West was familiar with plan provisions

setting out criteria for receiving benefits, including one that

restricts normal pension benefits to persons 60 years of age or

older. In December 1998, West arranged for Worley, who was

younger than 60 at the time, to receive a normal pension. The

apparent purpose of this maneuver was to persuade Worley to

retire early and thus remove a rival in the next election for IWU

president. By the government’s calculation, Worley received

$59,380 in excess pension benefits between December 1998 and

November 1999.

As to the false statement count, the government’s proffer

states that in December 1997 West signed and declared true and

correct a Form LM-2 Labor Organization Annual Report that

was submitted to DOL. The LM-2 stated that disbursements to

the IWU president, other than salary and expense allowance

payments, totaled $8,556; the true figure, which West knew, was

close to $98,500. Disbursements to Worley and three other

IWU officials were also understated on the 1997 LM-2 by

amounts ranging from $25,000 to $70,000. According to the

proffer, the union’s LM-2 filings for 1995 and 1996 also

underreported the true amounts of disbursements to the president

by “more than $70,000 and $80,000, respectively.” Proffer of

Facts at 6.
5

On August 19, 2003, as the date of West’s sentencing

approached, the probation office issued its final presentence

investigation report. The report calculated West’s sentence

under the Sentencing Guidelines. It first assigned West a base

offense level of four. Enhancements were then applied for

several aspects of West’s crimes: twelve points for the loss

associated with his embezzlement, which exceeded $500,000,

U.S.S.G. § 2B1.1 (1998); four points for being the organizer or

leader of the embezzlement, § 3B1.1(a); two points for abusing

a position of trust, § 3B1.3; two points for involvement in an

offense of more than minimal planning, § 2B1.1(b)(4)(A); and

two points for obstructing justice by providing false information

to the grand jury, § 3C1.1. The total offense level was therefore

26. For criminal history category I, this yielded a sentence

under the relevant Guidelines of 63 to 78 months. Because the

statutory maximum for violations of 18 U.S.C. § 664 is five

years and for violations of 29 U.S.C. § 439(b) one year, the

longest sentence West could receive was 72 months.

The government filed its sentencing memorandum in late

August 2003. The memorandum agreed with the presentence

report “in all material aspects” and requested that West receive

a sentence of 63 to 72 months in prison and be ordered to pay

restitution. Sentencing Memorandum at 2. It also offered an

extensive view of West’s criminal activity. West was revealed

as not an especially frugal union president. He spent, by the

government’s calculation, more than $51,000 in IWU funds on

dinners, golf, and items for his home in Virginia. He allowed

relatives to dine and go shopping in Washington, D.C., at the

union’s expense. He had the union pay for golf vacations in

Palm Springs, California, for both his personal waiter and his

tailor. These expenses went unreported in the union’s LM-2

filings.
6

West also had other top officials pay his tabs so as to

conceal the true amount of his own expenses. An opponent had

used West’s reported disbursements against him in the 1991

campaign for IWU president; West hoped to avoid a repeat of

this by shifting reported expenses to lower-ranking officials. In

many cases, these officials did not report these expenses at all

and, according to the memorandum, were given license to spend

the union’s money freely themselves. The government argued

that all these disbursements — both those unreported and those

attributed to other officials — should be treated as relevant

conduct for purposes of calculating West’s sentence.

The memorandum made similar contentions with respect

to West’s deal with Worley. In addition to the $59,384

embezzled from the retirement plan, West arranged to have

$74,620 improperly paid to Worley from the union’s

supplemental pension plan. At West’s direction, Worley also

continued to receive a salary and expense allowance from IWU

— amounting to about $217,000 — for more than a year after

his retirement. In all, the government calculated that conduct

relevant to West’s offense resulted in a loss of at least $555,000.

It is also significant that, according to the government’s

memorandum, West collaborated in almost every aspect of these

schemes with IWU General Counsel Victor Van Bourg.

On September 22, 2003, almost a year after entering his

guilty plea, West moved the district court to allow his plea to be

withdrawn or, alternatively, to order specific performance of the

plea agreement. In the event the court was inclined to deny

these requests, he asked that it hold an evidentiary hearing to

consider the evidence against him. He advanced two arguments

in support of the motion. First, he claimed that the prosecutor

who negotiated the plea agreement had assured him that, in

West’s phrasing, “there would be no further reference” to the

dropped charges. RM at 18 (West Declaration). As he saw it,
7

the government was now reneging on this promise by, in effect,

re-introducing these charges at sentencing. Second, West

argued that he did not know that his conduct as union president

was illegal because he relied on attorney Van Bourg’s

assurances that — again, West’s words — “all was proper and

legal and that I had nothing to worry about.” Id.

The district court denied West’s motion. Applying our

framework in United States v. Hanson, 339 F.3d 983 (D.C. Cir.

2003), the court ruled that West had not shown that his plea was

tainted or presented a viable claim of innocence so as to warrant

withdrawal. It also found that the government would suffer

prejudice by having to reconstruct a complex criminal case that

West’s guilty plea cut short eleven months before. Finally, the

court saw no reason to hold an evidentiary hearing or to order

specific performance of the plea agreement.

The district court then proceeded to sentence West.

West challenged four aspects of the presentence report’s

recommendations: the amount of loss, the four-point

enhancement for his leadership role, the two-point increase for

obstruction of justice, and the failure to deduct points for

acceptance of responsibility. The court rejected all of West’s

claims. It found facts by the preponderance of the evidence that

supported the application of the leadership and obstruction of

justice enhancements. With respect to amount of loss, the court

determined that the government had sufficiently proven that the

loss caused by West’s conduct was more than $500,000 but less

than $800,000, entailing a 12-point enhancement. The

government’s calculations were established “through pleadings,

through testimony, [and] through trial exhibits before the

Court.” Sentencing Hr’g Tr. at 39. West was also denied any

reduction for acceptance of responsibility due to his last-minute

attempt to withdraw his plea. Ultimately, however, the court

departed downward from the Guidelines range because of
8

West’s poor health. He was sentenced to 36 months in prison

followed by two years’ supervised release and ordered to pay

approximately $185,000 in fines and restitution. West appeals.

II.

West first challenges the district court’s refusal to grant

his motion to withdraw his plea. A defendant may withdraw a

guilty plea before sentencing if he “can show a fair and just

reason for requesting the withdrawal.” FED. R. CRIM. P.

11(d)(2)(B). We look to three considerations in reviewing

denials of motions to withdraw: “(1) whether the defendant has

asserted a viable claim of innocence; (2) whether the delay

between the guilty plea and the motion to withdraw has

substantially prejudiced the government’s ability to prosecute

the case; and (3) whether the guilty plea was somehow tainted.”

Hanson, 339 F.3d at 988; United States v.McCoy, 215 F.3d 102,

106 (D.C. Cir. 2000). The last of these is the most important,

see United States v. Horne, 987 F.2d 833, 837 (D.C. Cir. 1993),

and usually requires a showing that the taking of the plea did not

conform to the requirements of Federal Rule of Criminal

Procedure 11. “[A] defendant who fails to show some error

under Rule 11 has to shoulder an extremely heavy burden if he

is ultimately to prevail.” United States v. Cray, 47 F.3d 1203,

1208 (D.C. Cir. 1995). We review refusals of motions to

withdraw for abuse of discretion. United States v. Weaks, No.

03–3048, slip op. at 4 (D.C. Cir. Nov. 12, 2004); Hanson, 339

F.3d at 988.

A. We begin then with the issue of taint. West contends

that the government promised not to use any of the dismissed

charges against him at sentencing and that its failure to carry out

this promise taints his plea. Along with his motion in the district

court, West submitted an affidavit stating that the prosecutor

“assured me that there would be only the two counts and that the
9

2

 Several months later, West submitted additional affidavits from his

daughter and his attorney in support of a motion in the district court

for bail pending appeal. We need not consider these affidavits

because they were not part of the record before the court when it

denied West’s motion to withdraw his plea. See FED. R. APP. P. 10(a);

Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir.

1988) (“Papers submitted to the district court after the ruling that is

challenged on appeal should be stricken from the record on appeal.”).

Even if we were to consider them, they would not affect our

disposition of West’s appeal.

others would be dismissed and that there would be no further

reference to them.” RM at 18 (West Declaration).2

As the district court recognized, the suggestion that such

a promise was made is belied by the plea agreement itself, which

could hardly be clearer on this point. It contains an integration

clause that states: “The terms of this written Agreement

constitute the entire plea offer and agreement in this matter.”

RM at 7 (Plea Agreement). It makes clear that “[o]ther than the

offer and agreements noted in this document, there are no other

promises, conditions, understandings, or agreements by Jake

West or the [United States Attorney’s Office (USAO)].” Id. at

8. Under the heading, “Defendant’s Acceptance of Guilty Plea

Agreement,” where West signed the agreement, it again reads,

“Absolutely no promises, agreements, understandings, or

conditions have been made or entered into in connection with

my decision to plead guilty except those set forth in this Guilty

Plea Agreement.” Id. What the agreement does say about

West’s sentencing is similarly unequivocal: “The USAO and

defendant West make no promises to one another and make no

agreement with one another with regard to defendant West’s

sentencing in these matters.” Id. at 6. It also states that the

government “reserves allocution or its right to speak at Mr.

West’s sentencing.” Id. at 5.
10

By itself, this language argues strongly against the

existence of any unwritten promises by either party to the

agreement. See United States v.Ahn, 231 F.3d 26, 36 (D.C. Cir.

2000); United States v. Alegria, 192 F.3d 179, 185 (1st Cir.

1999). Inferring such promises is virtually foreclosed where, as

here, the district court has also conducted a flawless plea

proceeding at which the defendant was made fully aware of, and

assented to, the important terms of the agreement. See Ahn, 231

F.3d at 36. At the plea hearing, the court reviewed all the

relevant aspects of the agreement with West, including the

integration clause and the disclaimer of promises with regard to

sentencing. West, represented by counsel at the hearing, was

then asked whether any other promises induced him to plead

guilty; he replied “no.” If the government had made any

unwritten promises to West about his sentence, this was the time

for West (or his counsel) to say something. Neither did. In

consequence, the district court did not abuse its discretion in

deciding that West’s plea was not tainted by any unwritten

promise by the government.

B. Having found no taint to West’s plea, we next

consider whether West presents a sufficiently viable claim of

innocence to meet the “heavy burden” imposed by Cray. 47

F.3d at 1208. A general denial of guilt is not enough; West

“must affirmatively advance an objectively reasonable argument

that he is innocent.” Id. at 1209. West argues that the district

court erred in ruling that his reliance on Van Bourg, IWU’s

General Counsel, did not amount to a viable claim of innocence.

West argues that “at all times” that he was involved in the acts

for which he pled guilty “he was acting in accord with his

attorney’s advice.” RM at 13 (Motion to Withdraw Plea).

According to West, Van Bourg “consistently advised” him that

all his actions were proper and that “no criminal liability could

result.” Id.
11

3

 We therefore do not address whether the defense of advice of

counsel would have applied had West’s attorney not been deemed an

accomplice. See United States v. DeFries, 129 F.3d 1293, 1308 (D.C.

Cir. 1997) (good faith reliance on advice of counsel is a defense to the

charge of embezzlement under 29 U.S.C. § 501(c)).

The district court gave two reasons for rejecting West’s

advice-of-counsel claim. First, it found that the defense was not

applicable to 18 U.S.C. § 664, on the ground that the offense of

embezzlement from a pension fund does not require that the

defendant know that his conduct was illegal. Second, it ruled

that the defense was inapplicable in any case because here Van

Bourg was acting not as a legitimate attorney but as an

accomplice, who would have been indicted along with West had

he not died. The court made this finding by the preponderance

of the evidence based on Van Bourg’s untruthful responses to

government subpoenas and on evidence that he pressured union

accountants to cover up improper disbursements.

We agree that West does not present a viable claim of

innocence because Van Bourg was properly deemed to have

acted as his accomplice.3 The defense of advice of counsel

necessarily fails where counsel acts as an accomplice to the

crime. See United States v. Carr, 740 F.2d 339, 347 (5th Cir.

1984) (“When the lawyer is a partner in a venture, takes a share

of the profits, or is not a lawyer who had no interest save to give

sound advice for a reasonable fee the advice of counsel defense

is unavailable.”) (internal quotation marks omitted).

The proffers included with the guilty pleas of other top

union officials, as outlined in the government’s sentencing

memorandum, adequately show that Van Bourg was a coparticipant in the embezzlement scheme. Van Bourg was

integral to the decision to cover-up the true amount of

disbursements to West in the union’s LM-2 Reports. At a
12

meeting between IWU officials and the union’s accountants,

Van Bourg indicated that he did not want to comply with LM-2

reporting requirements. He then asked the accountants what

they would say if subpoenaed to testify about the meeting.

When Van Bourg was told by the accountants that they would

testify truthfully, he recommended that West fire them.

The evidence suggests that Van Bourg was also a

participant in the arrangement to secure full pension benefits for

Worley. Van Bourg had earlier advised local union agents, in

the presence of West, that it was a crime to inflate pension

benefits. West nevertheless states that Van Bourg “assured

[West] that he could make it all legal.” RM at 17 (West

Declaration). A defendant may avail himself of an advice of

counsel defense only where he makes a complete disclosure to

counsel, seeks advice as to the legality of the contemplated

action, is advised that the action is legal, and relies on that

advice in good faith. See SEC v. Savoy Industries, 665 F.2d

1310, 1314 n.28 (D.C. Cir. 1981). Van Bourg’s mere assurance

that he could “make it all legal” falls well short of these

requirements and, in light of the other evidence on which the

district court relied, does nothing to undermine the conclusion

that Van Bourg was himself part of the criminal enterprise. The

district court was warranted in finding that Van Bourg acted as

an accomplice and properly concluded that West could not

present an advice-of-counsel defense. It was therefore no abuse

of discretion for the district court to rule that West did not

present a viable claim of innocence.

C. Finally, the district court placed some reliance on the

possible prejudice the government would suffer if West were

allowed to withdraw his plea. While prejudice may properly be

taken into account, it “has never been dispositive in our cases.”

Hanson, 339 F.3d at 988; see also Cray, 47 F.3d at 1208.

Although it certainly appears that the government would be
13

4

 We are easily persuaded that the district court did not abuse its

discretion in denying West an evidentiary hearing or the alternative

relief of specific performance. A district court need hold an

evidentiary hearing on a plea withdrawal only where the defendant

offers “substantial evidence that impugns the validity of the plea.”

United States v. Redig, 27 F.3d 277, 280 (7th Cir. 1994) (internal

quotation marks omitted). As explained, that was not the case here.

With regard to specific performance, West does not allege any breach

of the express terms of the plea agreement, and since the district court

properly found no enforceable promise by the government regarding

sentencing, such a promise obviously could not provide the basis for

any form of relief.

prejudiced here, we need not consider the matter further. West

has not shown that his plea was tainted, nor has he satisfied

Cray’s “heavy burden” by presenting a viable claim of

innocence. These considerations suffice to decide that the

district court did not abuse its discretion in refusing West’s

withdrawal motion. See Cray, 47 F.3d at 1208.4

III.

The remainder of West’s appeal involves several

challenges to his sentence. He offers three reasons why his

sentence should be vacated: (1) the district court relied on

improper evidence in applying enhancements to his sentence

under the Sentencing Guidelines; (2) the court did not give him

an opportunity to cross-examine other union officials about the

proffers submitted with their guilty pleas, in purported violation

of his Sixth Amendment Confrontation Clause right; and (3) his

sentence violated his Sixth Amendment right to a jury trial, as

understood in Blakely v. Washington, 124 S. Ct. 2531 (2004),

because it was based on facts that were neither admitted nor

found by a jury beyond a reasonable doubt. Before we reach

any of these arguments, however, we must first address whether

West has waived the right to appeal his sentence.
14

5

 Under the agreement, West reserves the right to attack his sentence

collaterally under 28 U.S.C. § 2255, but only “if new and currently

unavailable information becomes known to him.” RM at 7 (Plea

Agreement).

The plea agreement between the government and West

contains an explicit waiver of the right to appeal the sentence,

which reads:

Mr. West is aware that federal law, specifically 18

U.S.C. § 3742, affords him the right to appeal his

sentence in these matters. Knowing that, Mr. West

waives the right to appeal his sentence or the manner in

which it was determined pursuant to 18 U.S.C. § 3742,

except to the extent that (a) the Court sentences Mr.

West to a period of imprisonment longer than the

statutory maximum or (b) the Court departs upward from

the applicable Sentencing Guideline range pursuant to

the provisions of U.S.S.G. § 5K2.

RM at 6–7 (Plea Agreement).5

The government asks us to give this waiver full effect.

It argues that we have enforced a similar waiver before, see In

re Sealed Case, 283 F.3d 349, 355 (D.C. Cir. 2002), and that

other circuits have honored such waivers in certain

circumstances, see, e.g., United States v. Hahn, 359 F.3d 1315,

1324–28 (10thCir. 2004); United States v. Hernandez, 242 F.3d

110, 113 (2d Cir. 2001). Sealed Case helps the government, but

does not resolve the issue. First, in Sealed Case, the defendant

agreed, after he was tried and convicted, to waive the right to

appeal that conviction. His waiver thus applied to a proceeding

that had already taken place, not, as here, to one that had yet to

occur. Moreover, the only ground on which the defendant in

Sealed Case challenged his waiver was that his plea had not
15

6

 At oral argument, counsel argued that the waiver’s exception for

upward departures under § 5K2 of the Guidelines permits an appeal of

the enhancements applied to West’s sentence. When the court pointed

out the distinction between sentencing enhancements and upward

departures under the Guidelines, counsel acknowledged his mistake

and conceded the point. He did not challenge the waiver’s validity.

been taken in accordance with Rule 11. If the plea was not valid

then the plea agreement — including the waiver of the right to

appeal — would not be enforceable. Once we determined that

there was no Rule 11 error, the defendant offered no other

reason to deny effect to the waiver with respect to the

defendant’s other claims.

West, for his part, offers no reason why we should not

honor the waiver here. His opening brief simply raises his

challenges to the sentence, without addressing the explicit

waiver barring such challenges. In his reply brief, he reserves

one short paragraph for a response to the government’s

contentions. He first asserts that the waiver is void because the

entire plea agreement was the result of “fraud in the

inducement,” i.e., because it was the product of false promises

by the government regarding his sentence. Reply Br. at 8. This

is merely a reprise of his argument that his plea was tainted —

one we have already rejected.

West then suggests that his Blakely challenge falls within

an exception to the waiver allowing appeal if “the Court

sentences Mr. West to a period of imprisonment longer than the

statutory maximum.” This argument, of course, does not deny

that a waiver of appeal rights is valid, but only that this

particular waiver does not cover West’s Blakely claim. If

anything, this argument implicitly acknowledges the waiver’s

validity.6
16

We find that we need not question the validity of West’s

waiver because he has not. Ordinarily, we “refuse to disturb

judgments on the basis of claims not adequately briefed on

appeal.” McBride v. Merrell Dow and Pharmaceuticals, Inc.,

800 F.2d 1208, 1210 (D.C. Cir. 1986). This practice is rooted in

the Federal Rules of Appellate Procedure, see Rule 28(a)(9)(A)

(appellant’s brief must contain his “contentions and reasons for

them”), and is essential to our system of appellate review,

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The

premise of our adversarial system is that appellate courts do not

sit as self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued by

the parties before them.”). Rulings on issues that have not been

fully argued run the risk of being “improvident or ill-advised.”

McBride, 800 F.2d at 1211. There is even greater cause to be

wary where, as here, the consequences of our ruling are

potentially far-reaching. See Alabama Power Co. v. Gorsuch,

672 F.2d 1, 7 (D.C. Cir. 1982) (per curiam). A decision as to

whether, and in what circumstances, waivers of appeal rights are

valid could affect a large number of criminal defendants. We

therefore decline to decide the issue without adequate briefing,

and treat the waiver as binding on West because he has not

contested it.

The upshot is that West may only appeal his sentence on

a ground that falls within one of the waiver’s exceptions.

Because he does not argue that an exception applies either to his

challenge to the district court’s application of the Guidelines or

to his Confrontation Clause claim, his waiver bars these claims.

The lone remaining issue is whether he can fit his Blakely claim

into the exception allowing him to appeal if “the Court sentences

[him] to a period of imprisonment longer than the statutory

maximum.” RM at 7 (Plea Agreement). West contends that the

term “statutory maximum,” as used in the plea agreement,

should be read as it is “defined in Blakely.” Reply Br. at 8. If
17

the exception is understood in this way, West argues, his Blakely

claim survives.

This requires some explication. The Supreme Court held

in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that,

except for the fact of a prior conviction, “any fact that increases

the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” In Apprendi, “statutory maximum” had a

relatively clear meaning: it was the maximum penalty allowed

by the criminal statute that the defendant was charged with

violating. See id. at 468–69 (judge’s finding of fact raised

statutory maximum from 10 to 20 years). In Blakely the

Supreme Court applied Apprendi to a state sentencing guidelines

scheme, and explained that, in that context, “the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a

judge mayimpose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” Blakely, 124 S. Ct.

at 2537.

West claims that the Sentencing Guidelines operate in

the same manner as the statute struck down in Blakely and are

therefore unconstitutional. Most important for present purposes

he contends that this claim is not barred by his appeal waiver

because the waiver’s “statutory maximum” exception

contemplates precisely this kind of Blakely-based challenge to

the Guidelines.

The question is one of interpretation, informed by

principles of contract law. Ahn, 231 F.3d at 35; United States v.

Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). Applying those

principles, we find it implausible that at the time of the plea

agreement the parties could have understood “statutory

maximum” to mean “statutory maximum for Apprendi

purposes,” as West suggests. If the exception means what West
18

says, it could only relate to a challenge under Apprendi. But this

court certainly did not give West any reason to believe that the

exception’s language would preserve an Apprendi attack on the

Guidelines. Indeed, our decisions, like those of other circuits,

consistently refused to apply Apprendi to the Guidelines or to

interpret “statutory maximum” as West urges us now to do.

United States v. Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001);

In re Sealed Case, 246 F.3d 696, 698–99 (D.C. Cir. 2001) (“it is

hard to see how the [Supreme Court] could have intended to

mandate the heightened standard for application of the

Guidelines’ enhancement instructions when the resulting

sentence remains within the statutory maximum”).

Indeed, West himself seems to have read the exception

differently before Blakely. In his opening brief, submitted

before Blakely was decided, he did not raise any Apprendi claim

at all; it was only in his reply brief — and after the Supreme

Court decided Blakely — that he argued that the exception

covered a challenge to the Guidelines. See RESTATEMENT

(SECOND) OF CONTRACTS § 202 cmt. b (1981) (“In interpreting

the words and conduct of the parties to a contract, a court seeks

to put itself in the position they occupied at the time the contract

was made.”).

Furthermore, reading the “statutory maximum”

exception as preserving an Apprendi attack on the Guidelines is

flatly inconsistent with the rest of West’s plea agreement. See

RESTATEMENT (SECOND) OF CONTRACTS § 202(2) (1981) (“A

writing is interpreted as a whole, and all writings that are part of

the same transaction are interpreted together.”). The same

section of the agreement sets out the maximum fines and periods

of imprisonment for violations of 18 U.S.C. § 664 and 29 U.S.C.

§ 439(b). See RM at 6 (Plea Agreement). The most reasonable

inference is that “statutory maximum” in the waiver exception

refers to these. In addition, as the agreement makes clear, West
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“understands that his sentence will be imposed in accordance

with the United States Sentencing Guidelines . . . and that the

Judge, in his sole discretion, will determine the facts relevant to

sentencing under the Sentencing Guidelines.” Id. Having

consented in such plain terms to sentencing under the

Guidelines, West would have us believe that he nevertheless

reserved a constitutional challenge to the Guidelines through an

exceedingly subtle employment of “statutory maximum.” We

find such a reading of the agreement untenable.

We emphasize that we decide here only the narrow issue

of whether the exception to West’s waiver of appeal rights

allows him to attack his sentence under Blakely and Apprendi.

It does not. We do not reach either the question whether such

waivers are valid as a general matter — because appellant does

not argue otherwise — or whether by simply pleading guilty

West waived, or could have waived, his Blakely rights. What

we do decide is that a waiver of the right to appeal a sentence

will be enforced if the defendant gives us no argument why it

should not be, and that this particular waiver covers all the

sentencing claims West seeks to advance on appeal.

Affirmed.