United States v. Tucker

1

United States of America Plaintiff-Appellee v. Kevin Lynn Tucker Defendant-Appellant

No. 22-2024

United States Court of Appeals, Eighth Circuit

May 25, 2023

Unpublished

Submitted: March 13, 2023

Appeal from United States District Court for the Eastern District of Arkansas - Central

Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.

PER CURIAM.

Kevin Lynn Tucker was indicted on one count of being a felon in possession of a firearm. He pled guilty pursuant to a plea agreement that contained an appeal waiver. After accepting his plea, the district court^[1] sentenced Tucker to 60 months' imprisonment followed by 3 years' supervised release. Tucker appeals, arguing that the district court erred by not reducing his sentence under United States Sentencing Guidelines (USSG) § 5G1.3(b) in light of time already served in state custody and by imposing an upward variance. Having jurisdiction under 28 U.S.C. § 1291, we dismiss the appeal in part based on the appeal waiver and otherwise affirm.

In December 2019, while on state parole, Tucker was arrested in his home pursuant to a state warrant for aggravated robbery. During the execution of the warrant, law enforcement recovered a firearm in Tucker's home. Tucker's parole was revoked, and he was taken into state custody. In June 2020, Tucker was charged in federal court with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), based on the firearm found in his residence. The state aggravated robbery charges were subsequently dropped. In July 2021, Tucker entered federal custody after having already served roughly 30 months in state custody. In February 2022, he pled guilty to the felon-in-possession charge pursuant to a plea agreement. Under the terms of his plea agreement, Tucker waived his right to appeal his conviction on any non-jurisdictional basis, except for claims of prosecutorial misconduct or a challenge to the substantive reasonableness of his sentence if the district court imposed an above-Guidelines-range sentence. At Tucker's sentencing hearing, the district court calculated the advisory Guidelines range as 30 to 37 months' imprisonment. The district court then sentenced Tucker to 60 months' imprisonment followed by 3 years' supervised release. Tucker now appeals his sentence.^[2]

Tucker first argues that the district court erred by failing to consider his time spent in state custody in its decision to vary upward. Specifically, Tucker points to USSG § 5G1.3(b), which "permits a departure to account for time already served where the current and prior offenses involve the same conduct." United States v. White, 354 F.3d 841 845 (8th Cir. 2004) (citing USSG § 5G1.3(b), comment. (n.7)). The government contends that Tucker's argument is barred by the appeal waiver in his plea agreement. "We review questions regarding the interpretation and enforcement of plea agreements de novo." United States v Guzman, 707 F.3d 938, 941 (8 th Cir. 2013) (citation omitted).

The merits of Tucker's argument are dubious. For example, the Guidelines provision Tucker cites permits departures, while the district court here imposed a variance. Regardless, Tucker's appeal on this ground is barred by his plea agreement. We enforce appeal waivers if an "appeal falls within the scope of the waiver and . . . both the waiver and plea agreement were entered into knowingly and voluntarily." United States v. Knight, 939 F.3d 933, 935 (8th Cir. 2019) (per curiam) (quoting United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc)). We must also ensure that enforcing a waiver would not "result in a miscarriage of justice." Id. (citation omitted). Tucker's plea agreement states:

[T]he defendant waives the right to appeal all non-jurisdictional issues including, but not limited to, any issues relating to pre-trial motions, hearings and discovery and any issues relating to the negotiation, taking or acceptance of the guilty plea or the factual basis for the plea, including the sentence imposed or any issues that relate to the establishment of the Guideline range, except that the defendant reserves the right to appeal claims of prosecutorial misconduct and the defendant reserves the limited right to appeal the substantive reasonableness of the sentence of imprisonment if the sentence is above the Guideline range established at sentencing and if the defendant makes a contemporaneous objection[.]

R. Doc. 35, at 3. By the plain language of his plea agreement, Tucker preserved his right to appeal on only three bases: (1) a lack of jurisdiction, (2) prosecutorial misconduct, and (3) a substantively unreasonable sentence if the sentence is above the Guideline range established at sentencing and he made a contemporaneous objection.

These exceptions do not encompass Tucker's first argument on appeal-that the district court erred by failing to consider USSG § 5G1.3(b) in its variance determination. Tucker insists that this is a substantive reasonableness challenge, but we routinely consider challenges to the district court's application of the Guidelines as procedural, not substantive. See, e.g., United States v. Carter, 652 F.3d 894, 896 (8th Cir. 2011) (analyzing district court's failure to apply USSG § 5G1.3(b) in its Guidelines calculations as procedural error); cf. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) ("'Procedural error' includes 'failing to calculate (or improperly calculating) the Guidelines range . . . .'" (quoting Gall v. United States, 552 U.S. 38, 51 (2007))). Further, the record indicates that Tucker knowingly and voluntarily entered into the plea agreement. See United States v. Cooney, 875 F.3d 414, 416 (8th Cir. 2017) ("A defendant signing a plea agreement and assenting again at a plea hearing generally indicate a knowing and voluntary waiver."). Moreover, enforcing the waiver would not result in a miscarriage of justice. See United States v. St. Pierre, 912 F.3d 1137, 1144 (8th Cir. 2019) (finding no miscarriage of justice in enforcing appeal waiver when the "appeal is grounded in alleged errors by the district court in applying the Sentencing Guidelines"). Thus, we dismiss this portion of Tucker's appeal as barred by the appeal waiver in his plea agreement.

Tucker also argues that his sentence was substantively unreasonable. Namely, he contends that the district court erred in imposing an upward variance from the Guidelines range without considering the mitigating impact of his time spent in state custody. "When we review the imposition of sentences,...