By Eric Benedict
On February 16, 2016, the Fourth Circuit Court of Appeals issued its published opinion in the criminal case, United States v. McLaughlin. Judge Wilkinson, writing for a unanimous panel, dismissed McLaughlin’s appeal. The panel used a published opinion to clarify which types of appeals fall within the perimeters of a plea bargain which waives the right to appeal a sentencing guideline range established at sentencing.
McLaughlin Accepts Plea Agreement for ATM Fraud
In 2014, Tineka McLaughlin pleaded guilty to violating 18 U.S.C. § 1344 by her participation in an ATM fraud scheme in North Carolina. McLaughlin entered into an agreement with prosecutors which, in part, required McLaughlin:
To waive…all rights…to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing…”[emphasis added]
At her plea hearing, McLaughlin verbally indicated that she understood that she retained only the right to appeal based on an upward departure of the sentencing. To calculate McLaughlin’s sentence, the judge used the “four-level role-in-the-offense enhancement” found in the United States Sentencing Guidelines at U.S.S.G. § 3B1.1(a) (the “role increase”). The provision provides for a four-level increase in the offense level “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive….” The role increase resulted in a guideline imprisonment of fifteen to twenty-one months. The District Court then cited U.S.S.G. § 4A1.3(a)(1) to impose an upward departure sentence of twenty-seven months to reflect there seriousness of the defendant’s criminal history (the “recidivism departure”).
McLaughlin Appeals “Role-In-Offense” Sentence Increase
On appeal from the Eastern District of North Carolina, McLaughlin criticized the use of the role increase in calculating her sentence. Citing her plea agreement, the United States moved to dismiss, arguing that the calculation of the role increase was a part of the “establishment of her advisory Guideline range” and thus, was waived in her plea agreement. McLaughlin in turn argued that since she did in fact receive an upward departure, she was free to appeal any part of her sentence. Counsel for McLaughlin did not appeal the recidivism departure.
The Fourth Circuit Concludes that McLaughlin Waived Appeals Grounds
Judge Wilkinson turned first to the text of the waiver to conclude that the grounds for appeal had been waived. The court found an examination of the waiver provision in its entirety particularly instructive against McLaughlin’s claim of error. Reasoning that the role increase is, by definition part of the establishment of the “advisory guideline,” the court concluded that appeals like McLaughlin are exactly what the waiver seeks to avoid. Notably, the Fourth Circuit explained that because the interpretation of plea bargains is rooted in contract law, and because contract terms must be interpreted in light of the agreement in its entirety, the waiver provision must include an appeal based on the role increase, since otherwise, other portions of the waiver would be rendered “mere surplusage.”
Judge Wilkinson next addressed McLaughlin’s contention that the agreement was ambiguous and should be construed in her favor to allow the appeal. However, the court found the meaning of the agreement clear in its prohibition of such an appeal, and the allowance of an appeal based on an upward departure.
Finally, the panel questioned the appeal’s propriety in light of the existence of the available grounds, the recidivism departure. Although not mentioned by the court in this case, had McLaughlin appealed, the Fourth Circuit has previously explained that it would have “consider[ed] whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Harnandez-Villanueva. However, as the court noted, this issue was not before the court.
The Fourth Circuit Determines that the Appeal as Waived and Dismisses
The court applied principles of contract interpretation to the interpretation of the plea agreement to find that it prohibited the appeal based on the role increase. The Fourth Circuit therefore found that McLaughlin waived her right to appeal the role increase and dismissed the appeal.