US v Jacobs

635 F.3d 778

Fifth Circuit Court of Appeals

Decided on March 15, 2011

Issue:

Appealing Upward Variances in Sentencing

Whether an appeal waiver is valid when a defendant receives an upward variance at sentencing when he preserved his right to appeal an upward departure from the Sentencing Guidelines.

Holding:

Appeal Waiver Valid and Enforceable

The Court held that an upward variance and an upward departure are not the same, therefore the defendant’s appeal waiver is valid and his appeal dismissed.

Facts:

Marcus Jacobs pled guilty to possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea agreement, Jacobs waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines.

Jacobs’ waiver stated that, “The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only a) the sentence imposed above the statutory maximum; or b) an upward departure from the Sentencing Guidelines which had not been requested by the United States as set forth in Title 18 U.S.C. § 3642(b).”

At sentencing, the district court calculated the advisory Guidelines sentencing range as four to ten months. The Government recommend a sentence of seven months. However, the district court opted to vary upwardly under 18 U.S.C. § 3553(a), citing Jacobs’ extensive criminal history, failure of prior sentences to deter Jacobs from further criminal conduct, and a high risk of recidivism. The court sentenced Jacobs to 36 months in prison.

Jacob appealed, challenging the reasonableness of a sentence that is 260 percent longer than the high end of the Guidelines Range.

Analysis:

‘Departure’ Distinct From ‘Variance’

Jacobs’ plea agreement, which was knowing and voluntary, only allows him to appeal an “upward departure.” Departure refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The Guidelines set out a three-part framework for the imposition of sentences: the district court 1) calculates the advisory sentencing range; 2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and 3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole. A district court cannot impose a departure unless it first notifies the parties, and it must explain its reasons for doing so.

By contrast, if after completing the Guidelines’ three-step process the district court “imposes a sentence that is outside the guidelines framework, such a sentence is considered a ‘variance.’” The court’s authority to impose a variance is discretionary and stems from 18 U.S.C. § 3553(a).

The Fifth Circuit held that an upward departure and an upward variance are not the same. The plea agreement applies only to “departures,” which has an ordinary, well-settled meaning in the sentencing context. That meaning does not extend to variances such as the one the district court imposed in this case. Therefore, Jacobs’ appeal waiver is valid and does not authorize him to appeal the upward variance he received at sentencing. His appeal was dismissed.