Change in sentencing law resulting from Booker decision does not invalidate appeal waiver provisions of otherwise lawful plea agreements

APPEAL/SENTENCING United States v. Porter, No. 04-4009, ___ F.3d ___ (10th Cir. May 3, 2005)(Utah). Appeal of convictions for methamphetamine distribution and being felon in possession of ammunition in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1). HELD: (1) While entry of voluntary and unconditional guilty plea waives right to assert all non-jurisdictional defenses on appeal, including denial of motion for substitute counsel, where defendant’s request for new counsel arises after entry of guilty plea and is based on dissatisfaction with attorney’s performance in preparing for sentencing, circumstances forming basis for substitution request follow execution of plea agreement and therefore cannot be precluded by it. (2) Where defendant stipulates to drug quantity in plea agreement, sentence based on drug quantity does not violate Booker Sixth Amendment jury trial rights because sentence is based on admitted fact. (3) As part of plea agreement, criminal defendants may waive both rights in existence and those resulting from unanticipated later judicial determinations. Accordingly, change in sentencing law resulting from Booker does not invalidate otherwise lawful plea agreements. (4) Where appeal waiver provision of plea agreement contained exception for situation in which sentence exceeds maximum provided for in "statute of conviction," Booker does not require reading term "statute of conviction" out of agreement and substituting with "applicable guidelines range." Thus, where statute of conviction provided maximum penalty of 40 years, defendant’s sentence of 110 months did not exceed maximum penalty. Accordingly, sentence was within scope of plea agreement’s appeal waiver. Read the opinion here.