United States v. Staveley

43 F.4th 9

UNITED STATES of America, Appellee,

v.David STAVELEY, a/k/a Kurt D. Sanborn, a/k/a David Sanborn, a/k/a Kurt Sanborn, a/k/a David Adler Staveley, Defendant, Appellant.

No. 21-1842

United States Court of Appeals, First Circuit.

August 2, 2022

Kara Hoopis Manosh for appellant.

Lauren S. Zurier, Assistant United States Attorney, with whom Zachary A. Cunha, United States Attorney, was on brief, for appellee.

Before Thompson, Selya, and Gelpí, Circuit Judges.

SELYA, Circuit Judge.

In United States v. Teeter, 257 F.3d 14 (1st Cir. 2001), and its progeny, this court has upheld the general validity of appeal waivers in criminal cases. See id. at 23 ; see also United States v. O'farrill-López, 991 F.3d 45, 48 (1st Cir. 2021) ; United States v. Almonte-Nuñez, 771 F.3d 84, 88 (1st Cir. 2014) ; United States v. Nguyen, 618 F.3d 72, 74 (1st Cir. 2010). Those decisions paint the backdrop for this appeal, in which defendant-appellant David Staveley asks us to override an appeal waiver and allow him to proceed with an appeal based on what he alleges to be the ineffective assistance of his counsel below. This entreaty runs headlong into the well-established Mala rule, which instructs that a "fact-specific claim[ ] of ineffective assistance [of counsel] cannot make [its] debut on direct review" when the record is insufficiently "developed to allow reasoned consideration of the claim." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

In our view, the Mala rule must prevail. Thus, we hold that ineffective assistance of counsel claims, not raised in the district court and not within an exception to Mala, are inadequate to overcome an appeal waiver. Consequently, we dismiss the appeal.

I

We briefly rehearse the background and travel of the case. Because this appeal follows a guilty plea, we take the facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Lessard, 35 F.4th 37, 40 (1st Cir. 2022).

When the COVID-19 pandemic ravaged the nation, Congress created emergency financial assistance programs to ameliorate the economic consequences wrought by the crisis. See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020). One of these programs — the Paycheck Protection Program (PPP) — provided small businesses with funds necessary to meet their employees' salaries and other operating expenses. See id. § 1102, 134 Stat. at 286-94.

In April of 2020, the defendant — along with a co-conspirator — submitted several false and fraudulent loan applications seeking PPP funds. Those applications were ostensibly made on behalf of various entities, claiming that the entities had several employees and large payrolls. In reality, those entities — at the time the applications were made — either had no employees at all or paid out no wages in the relevant time frame.

After these machinations came to light, the defendant was charged by criminal complaint in the District of Rhode Island. The affidavit accompanying the complaint alleged in substance that the defendant had committed bank fraud, see 18 U.S.C. § 1344, had conspired to commit bank fraud, see id. §§ 1344, 1349, and had perpetrated other federal crimes, see 15 U.S.C. § 645(a) & 18 U.S.C. § 371 (conspiracy to make false statements to influence the Small Business Administration); 18 U.S.C. § 1028A (aggravated identity theft). While awaiting trial, the defendant was released on personal recognizance and was later required to stay in home confinement.

In disregard of the conditions of his release, the defendant fled from the state. To avoid apprehension, he staged a fake suicide and — while on the lam — used false identities and stolen license plates. Those events led to an additional federal charge for failing to appear in court. See id. § 3146(a)(1).

Approximately one year later, the defendant — who by then had been charged by a grand jury — agreed to plead guilty to conspiracy to commit bank fraud, see id. §§ 1344, 1349, and to failure to appear in court, see id. § 3146(a)(1). His plea agreement contained a waiver-of-appeal provision, which stated that the defendant agreed to forgo his right to appeal the convictions and sentences imposed so long as the sentences imposed were within or below the guideline sentencing range (as determined by the sentencing court). At the change-of-plea hearing, the district court specifically addressed the waiver-of-appeal provision and confirmed that the defendant understood its significance.

The district court convened the disposition hearing on October 7, 2021. At that hearing, the sentencing court determined the defendant's total offense level and criminal history category. Based on those determinations, the court found that the defendant's guideline range suggested an aggregate sentence between fifty-one and sixty-three months of incarceration.

The government argued for consecutive sentences aggregating a within-Guidelines sentence of fifty-six months. During the course of its argument, the government disputed the defendant's claim that his post-traumatic stress disorder (PTSD) stemmed from an alleged sexual assault while he had been in federal custody for an earlier offense. It noted that the PSI Report sketched an unclear picture of the factual basis for those allegations.

Defense counsel rejoined that the appropriate sentences would be time served with supervised release. He argued — among other things — that the defendant's sentences should be mitigated because the defendant had been diagnosed with PTSD. Although acknowledging that the government had called into question the underlying cause of that PTSD, he countered that he had provided the district court with medical records substantiating the PTSD diagnosis.

When mulling the sentencing factors, the district court commented that "[t]he fact that serving time in prison for [the defendant] is more difficult because of the PTSD and the things that [the defendant had] been through ... is something that is awful." Nevertheless, the court concluded that it was "also a risk that [the defendant] knew [he] w[as] taking at the time that [he] w[as] engaging in th[e] behavior." The court then imposed a sentence of forty-four months for the conspiracy charge and a sentence of twelve months for the failure-to-appear charge, to be served consecutively. That aggregate sentence added up to a within-Guidelines sentence. Finally, the court — pursuant to the plea agreement — dismissed the other charges against the defendant.

Shortly after the disposition hearing, the defendant sought and received court-appointed counsel pursuant to the Criminal Justice Act. See id. § 3006A. The defendant's new counsel then brought this timely appeal.

II

The defendant asserts — for the first time on appeal — that his guilty plea (and, thus, his convictions and his aggregate sentence) should be vacated because his then-counsel afforded him ineffective assistance in derogation of his Sixth Amendment rights both at the time he entered his plea and at sentencing. See U.S. Const. amend. VI ; see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying Strickland to claims of ineffective assistance in guilty-plea context). As we explain below, this assertion blinks reality.

Although "[t]he Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel," there is no guarantee that a defendant can assert a violation of that right for the first time on direct appeal of a conviction or sentence. United States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013) (alteration in original) (quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994) ). That admonition is doubly relevant where, as here, a valid waiver-of-appeal provision may operate to preclude the defendant's claims. Our inquiry begins with the threshold issue: whether the waiver-of-appeal provision in the defendant's plea agreement requires dismissal of the defendant's appeal.

A

We begin with first principles. In Teeter, we held that a presentence waiver of appellate rights in a criminal case is presumptively enforceable when it is made knowingly and voluntarily. See Teeter, 257 F.3d at 25. At the same time, we rejected the notion that such waivers are invalid simply because they are made before a defendant has any real "clue as to the nature and magnitude of the sentencing errors" that may occur. Id. at 21. Recognizing the "obvious dangers attendant to the practice," though, we held that such waivers must "meet stringent criteria" to ensure that they have been entered into knowingly and voluntarily. Id. at 23.

We also held that "limits must be set on the effect that can be given to [such waivers]." Id. at 24. Although a knowing and voluntary waiver of appellate rights is presumptively enforceable, "no appeal waiver serves as an absolute bar to all appellate claims." Garza v. Idaho, ––– U.S. ––––, 139 S. Ct. 738, 744, 203 L.Ed.2d 77 (2019). For instance, a waiver does not apply unless a "claim of error falls within the scope of the waiver." O'farrill-López, 991 F.3d at 48 (citing Teeter, 257 F.3d at 24 ); see Almonte-Nuñez, 771 F.3d at 88. And because presentence appeal waivers are "made before any manifestation of sentencing error emerges, appellate courts must remain free to grant relief from them in egregious cases." Teeter, 257 F.3d at 25. "[I]f denying a right of appeal would work a miscarriage of justice, the appellate court, in its sound discretion, may refuse to honor the waiver." Id.

With this foundation in place, we turn to the case at hand. As an initial matter, the defendant appears to concede that his appeal falls within the literal scope of the waiver-of-appeal provision. He nonetheless argues, in broad strokes, that the waiver of appeal is nugatory because he...