# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2004 Decided December 10, 2004

No. 03-3149

U NITED S TATES OF A MERICA

, A PPELLEE

v.

J AKE W EST

, A PPELLANT

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 appel

l ee. With her on the brief were K enneth L.

Wainstein , U.S. Attorney, and John R. Fisher

, Roy W. McLeese,

III

, and Steven W. Pelak

, Assistant U.S. Attorneys. T ho mas J.

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

Before: G

INSBURG

, Chief Judge , and H ENDERSON and

R OBERTS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge R OBERTS

.

R OBERTS

, Circuit Ju dge : Appellant Jake West pled

g uilty to two charges related to the embezzlement of funds fr o m

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 t he plea agreement

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

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

uphold the sentence.

I.

Jake West is the former president of the Interna tional

Association of Bridge, Structu ral, Ornamental and Reinforcing

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

charged him in a 51-count indictment with conspiracy,

embezzlement from the IWU, mak ing false statements in

Department of Labor (DOL) re p orts, and obstruction of justice.

T he indictment alleged that West had appropriated union funds

for his personal b enefit and had covered up his activities by

filing f alse and misleading reports with the DOL. A second

i ndictment, filed in August 2002, charged both West and a

former IWU General Secretary , LeRoy Worley, with conspiracy,

embezzlement from the union, and em bezzlement from the

union’s pension f

und. According to the government, West

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

retirement plan ev

en though he did not meet the applicable3

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 indictm e nt

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

the jury was sworn, and West changed his mind ab out 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 st atement 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

Agre ement). The agreement twice recites that no “promises,

conditions, understandings, or agreements” have been made or

e ntered into by the government other than those in the

agreement itself. I

d

. at 8. The government “reserves allocution

or its right to speak at Mr. West’s sentencing,” i d

. at 5, a nd the

government and West

“make no promises to one another and

make no agreement with one another with regard to defend a nt

West’s se ntencing in these matters,” i d

. at 6. In addition, the

agreement states that “West understands that his sente nce will

be impos ed in accordance with the United States Sentencing

Guidelines.” I

d

. at 6. Finally, under the agreement West

explicitly waives the right to appeal his se ntence unless the court

sentences him to a pr ison term in excess of the statutory

maximum or departs upwar d 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 voluntari ly. West was

represented

at this hearing by counsel. With respect to the

integration clause, the court asked West directl y, “Other than the

promises in this plea agreement, are the re any other promises

that have induced

. . . you [to] pl ead guilty?” West responded,

“no.” Plea Hr’g Tr. at 20.

At the p lea hearing, the government also proffered the

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

IWU’s retirement plan, West w as familiar with plan provisions

setting out criteria for re ceiving benefits, including one that

restricts normal pension benefits to persons 6 0 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 thi s maneuver was to persuade Worley to

retire early and thus remove a riv al 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 govern ment’s proffer

states that in December 1997 West signed and declared true and

correct a Form LM-2 Lab or Organization Annual Report that

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

the IWU president, other than salary and expe nse 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

am ounts ranging from $25,000 to $70,000. According to the

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

u nderreported the true amounts of disbursements to the president

by “mor e 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 embez zlement, 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 re levant Guidelines of 63 to 78 months. Because the

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

years and f

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

longest sentence West could receive was 72 months.

The government filed its sente ncing memorandum in late

August 2003. The memorandum agreed with the presentence

report “in all material aspects” and requested that Wes t receive

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

restit ution. 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

din ners, 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

tail o r. 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 pre sident; West hoped to avoid a repeat of

this by shifting reported expenses to lower-rank ing officials. In

many cases, thes e 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 disbursemen

t s

— 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 conte ntions with respect

to West’s deal w ith 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

supplementa

l 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 as pect 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 p lea to be

withdrawn or, alternati

vely, 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 a ssured 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

th e 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 bec ause 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 reco nstruct 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 pres entence report’s

recommendations: the amount of loss, the four-point

enhancement for his leadership role, the two-poi nt increase for

obstruction of justice, and the failure to deduct points for

acceptance of responsi

bility. 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 ha d sufficiently proven that the

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

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

government’s calculations were establish ed “through pleadings,

th rough 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 Guideline s range because of8

West’s poor heal

th. He was sentenced to 36 months in prison

followed by two years’ supervised r e lease and ordered to pay

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

II.

West first chall

e nges 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.” F ED

. R. C RIM

. 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) w hether 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),

a nd usually requires a showing that the taking of the plea d id not

conform to the requirements of Fed e ral Rule of Criminal

Procedure 1 1. “[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 discre tion. U nited 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

ch arges 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 the9

2 Several months later, West submitted additional affidavits from his

daughter and his attorney in suppo rt of a motion in the district court

for bail pending appeal. We need not consider these affidavits

bec ause they were not part of the record before the court when it

denied West’s motion to withdraw his plea. S ee F ED

. R. A PP

. P. 10(a);

Kirshner v. Uniden Corp. of America

, 842 F.2d 1074, 1077 (9th Cir.

1988) (“Papers submitted to the di strict court a fter the ruling that is

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

E ven 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 recogn i zed, 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, understa n dings, or agreements by Jake

West or the [United

States Attorney’s Office (USAO)].” I d

. at

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

Agreement,” wher

e West signed the agreement, it again reads,

“Absolutely no promises, agreements, understandings, or

conditions have been made or entered into in connect ion with

my decision to p lead guilty except those set forth in this Guilty

Plea Agreement.” I

d

. What the agreement does say about

West’s sentencing is simila r ly unequivocal: “The USAO and

defendant West make no promises to one another and make no

agreement with one another with regard to defendan t West’s

sentencing in these matters.” I d

. at 6. It also states that the

g overnment “reserves allocution or its right to speak at Mr.

West’s sentencing.” Id . at 5.10

By itself, this lang

uage argues strongly against the

existence of any unwritten promises by either par ty to the

agreement. See United States v. Ahn

, 231 F.3d 26, 36 (D.C. Cir.

2000); Unite d 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 aw are of, and

assented to, the important terms of the agreement. S ee Ahn

, 231

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

relevant aspects of th

e agreement with West, including the

integration clause and the disclaimer of pro mises with regard to

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

then asked whether

any other promises induced him to plead

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

unwritten promises to West about his sentence, this wa s the time

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

consequence, the district court did no t 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” impose d by C ray

. 47

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

“must affi rmatively advance an objectively reasonable argument

that he is innocent.” I

d

. 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 o f 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 advi sed” 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 be en 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 reje cting West’s

a dvice-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 inapplicabl e in any case because here Van

Bourg was acting not as a legitimate attorney but as an

accomplice, who would hav e 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 vi able claim of

innocence because Van Bourg was pr operly deemed to have

acte d as his accomplice. 3 The defense of advice of counsel

necessarily fails where counsel acts as an accomplice to the

crime. S ee 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 int erest save to give

sound advice for a reasonable fee the advice of counsel defense

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

The proffers include d with the guilty pleas of other top

union officials, as outlined in the government’s sen tencing

memorandum, adequately show that Van Bourg was a cop articipant 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 a12

meeting between IWU officials and the union’s accountants,

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

r eporting 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 tha t 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 be nefits 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 make s a complete disclosure to

counsel, seeks advice as to the legality of the cont emplated

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

advice in good faith. S ee SE C 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

requirement s and, in light of the other evidence on which the

dist rict 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 t hat Van Bourg acted as

an accomplice and properly concluded t hat 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 suff er if West were

allowed to with

draw 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 Cr ay , 47 F.3d at 1208.

Although it certainly appears that the government would be13

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 “s ubstantial evidence that impugns the validity of the plea.”

United States v. Redig

, 27 F.3d 277, 280 (7th Cir. 199 4) (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

prope rly 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

C ray ’s “heavy burden” by presenting a viable clai m 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 involve s several

challenges to his se ntence. He offers three reasons why his

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

improper evidence i

n applying enhancements to his sentence

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

a n opportunity to cross-examine other union officials about the

proffers submitted with their guilty pleas, in purpo rted violation

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

sentence violated his Sixth Amendment right to a jury tr ial, as

understood in Blakely v. Washington

, 124 S. Ct. 2531 (2004),

becaus e it was based on facts that were neither admitted nor

found by a jury beyond a reasonable d oubt. Before we reach

any of these argu

ments, 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 b ecomes known to him.” RM at 7 (Plea

Agreement). The plea agreement between the gover n ment and West

contain s 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

w aives 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 depa r ts upward from

the applicable S entencing 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 thi s waiver full effect.

It argues th

at we have enforced a similar waiver before, s ee In

re Sea led 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 (10th Cir. 2004); United States v. Hernandez

, 242 F.3d

110, 113 (2d Cir. 2001). S ealed 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 not15

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 a nd upward

departures under the G uidelines, 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, offer s no reason why we should not

h onor 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 gov ernment’s

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

entire plea agreement was the result of “fraud in the

i nducement,” i .e.

, because it was the product of false promises

by the g overnment regarding his sentence. Reply Br. at 8. This

is merely a reprise of his argument th at 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. Wes t to a period of imprisonment longer than the

s tatutory maximum.” This argument, of course, does not deny

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

particul ar waiver does not cover West’s B lakely claim. If

anything, this argument implicitly acknowledges the waiv er’s

validity. 616

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

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

judgments on the basis of claims not adequately briefed on

appeal.” M

cBride 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 sy stem of appellate review,

Carducci v. Regan

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

premise of our ad versarial system is that appellate courts do not

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

essentially as arbiters of legal questions pr esented and argued by

the par ties 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 12 11. There is even greater cause to be

w ary where, as here, the consequences of our ruling are

potentially far-reaching. S ee 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

v alid could affect a large number of criminal defendan ts. We

therefore decline to decide the issu e without adequate briefing,

and treat t

h e 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.

Becau se 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 r emaining issue is whether he can fit his B lakely claim

into the exce ption 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 B lakely .” Reply Br. at 8. If17

the exception is understood in this way, West argues, his B lakely

claim survives.

T his requires some explication. The Supreme Court held

in Apprendi v. New Jersey

, 530 U.S. 466, 490 ( 2 000), 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

reas onable doubt.” In A pprendi

, “statutory maximum” had a

re latively clear meaning: it was the maximum penalty allowed

by the criminal statute that t he defendant was charged with

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

statutory maximum from 10 to 20 years). In B lakely the

Supreme Court applied Apprendi to a state sent encing guidelines

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

maximum’ for Apprendi purposes is the ma x imum sentence a

judge may impose solely on the basis of the facts reflected in the

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

at 2537.

West clai ms that the Sentencing Guidelines operate in

the same manner as the statute struck down in B lakely and are

therefore unconstitutional. Most important for present purposes

he contends that this claim is not barred by his appea l waiver

because the waiver’s “statutory maximum” exception

contemplates precisely this kind of B lakely -based challenge to

the Guidelines.

Th e 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 West18

says, it could only relate to a ch a llenge under Apprendi

. But this

court c ertainly 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 r efused to apply A pprendi to the Guidelines or to

interpret “stat

u tory 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’ enh ancement 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 afte r the Supreme

Court de cided Blakely — that he argued that the exception

covered a challenge to the Guidelines. S ee R ESTATEME

N T

(S ECOND ) OF C ONTRAC TS § 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. S ee

R ESTATEMENT (S ECOND ) OF C ONTRACT S § 202(2) (1981) (“A

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

the same transaction are i n terpreted together.”). The same

section of the agreement sets out the maxim um fines and periods

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

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

inferen ce is that “statutory maximum” in the waiver exception

refers to these. In addition, as the agreement makes clear, West19

“understands tha t his sentence will be imposed in accordance

with the Unite d States Sentencing Guidelines . . . and that the

Judg e, in his sole discretion, will determine the facts relevant to

sentencing under the Sentencing Guid elines.” I d. Having

consented in such plain terms to sentencing under the

Guidelines, West would have us believe that he neverthel ess

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 decid e here only the narrow issue

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

allows him to attack his sentence under Blakely and A pprendi

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

w aivers are valid as a general matter — because appellant does

not argue otherw ise — or whether by simply pleading guilty

West waived , or could have waived, his B lakely rights. What

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

will be enforced if the defendant gi ves 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

.