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Monday, November 28, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, dismissing appeal

In USA v. Darryl Worthen (SD Ind., Barker), a 6-page opinion, Judge Kanne writes:

Worthen entered 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 government agreed to drop the other charges and promised to not seek the death penalty.  * * *

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.

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. * * *

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. * * *

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.  

Posted by Marcia Oddi on November 28, 2016 01:54 PM
Posted to Ind. (7th Cir.) Decisions