United States v. Worthen, No. 15-3521 (7th Cir. 2016)
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Worthen, a FedEx driver, delivered packages to Maxie, the owner of a southern Indiana gun store. Worthen set up a meeting with Maxie, purportedly for a gun trade. He actually wanted to case the store with his brother and cousin. They met with Maxie for an hour, surveyed the store, and left. They returned the next day, having decided to kill Maxie. Worthen conversed with Maxie, then pulled out a gun and shot Maxie in the eye, killing him. The men then stole 45 firearms and Maxie’s laptop, which recorded the video feed from the store’s surveillance cameras. Heading back to Indianapolis, Worthen threw the gun and laptop into a cornfield. Days later, police arrested the men, finding only four of the stolen firearms in Worthen’s possession. They had already distributed most of the firearms throughout Indianapolis.Two guns were recovered in investigating unrelated crimes; 36 remain unrecovered. Worthen pled guilty to Hobbs Act robbery, 18 U.S.C.1951(a) and causing death while using or carrying a firearm during a crime of violence, 18 U.S.C. 924(j), which authorizes a sentence of death or life imprisonment. The government agreed to drop other charges and to not seek the death penalty. The court sentenced Worthen to a total of 60 years’ imprisonment. Based on his appeal waiver, the Seventh Circuit dismissed Worthen’s appeal in which he argued that Hobbs Act robbery (the predicate offense for his 924(j) conviction) is not a “crime of violence.”
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 3521 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DARRYL ANTHONY WORTHEN, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 15 cr 00006 — Sarah Evans Barker, Judge. ____________________ ARGUED OCTOBER 28, 2016 — DECIDED NOVEMBER 28, 2016 ____________________ Before RIPPLE, KANNE, and ROVNER, Circuit Judges. KANNE, Circuit Judge. As a FedEx driver, Darryl Worthen delivered packages to Scott Maxie—the owner of a gun store in southern Indiana called Muscatatuck Outdoors. Worthen and Maxie knew each other well, as they often conversed dur ing the deliveries. Worthen even considered Maxie to be a friend. But unfortunately, their friendship wasn’t strong enough to withstand Worthen’s greed. Worthen decided to rob Maxie—and he exploited their friendship to do it. 2 No. 15 3521 On September 20, 2014, Worthen called Maxie to set up a meeting under the guise of making a gun trade. But the true purpose of this meeting was to give Worthen and his confed erates—his brother DeJuan and cousin Darion Harris—an op portunity to case Maxie’s store. That afternoon, the three drove 76 miles from Indianapolis to the store, devising a plan to rob Maxie along the way. They met with Maxie for almost an hour, surveyed the store, and then left. They returned the next day. This time, they brought along backpacks to carry the firearms that they planned to steal. During their drive, they decided not only to rob Maxie but also to kill him. To that end, Worthen brought a .22 caliber handgun. When they arrived at the store, Worthen conversed with Maxie. During their conversation, Worthen pulled out his handgun, pointed it at Maxie’s face, and shot him in the eye, killing him. The men then grabbed 45 firearms and loaded them into their backpacks. Worthen also stole Maxie’s laptop, which was recording the video feed from the store’s surveillance cam eras. They then left the store, heading back to Indianapolis. En route, Worthen threw the murder weapon and laptop into a cornfield. On September 22, 2014, police officers arrested Worthen, DeJuan, and Harris. The officers found only four of the stolen firearms in Worthen’s possession. Worthen and his confeder ates had already distributed most of the firearms throughout Indianapolis. Indianapolis police officers found one of the firearms in October 2014 when executing a search warrant for drugs. And they discovered another firearm in February 2015 when investigating a shooting. In total, 36 of the 45 stolen fire arms remain unrecovered. No. 15 3521 3 On March 11, 2015, a grand jury indicted Worthen on four counts: (1) Hobbs Act robbery under 18 U.S.C. §§ 1951(a) and 2; (2) conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951(a); (3) causing death while using or carrying a firearm during a crime of violence under 18 U.S.C. §§ 924(j) and 2; and (4) stealing firearms from a federal firearms licen see under 18 U.S.C. § 922(u). Hobbs Act robbery carries a prison term of up to 20 years, 18 U.S.C. § 1951(a); and a con viction on a crime of violence charge authorizes a sentence of death or life imprisonment, 18 U.S.C. § 924(j)(1). Worthen en tered 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 govern ment agreed to drop the other charges and promised to not seek the death penalty. The district court held the sentencing hearing on Novem ber 2, 2015. There, Worthen apologized to Maxie’s family, and his attorney offered several mitigating factors, including Worthen’s acceptance of responsibility, his difficult life cir cumstances, and his low risk for future violence. The govern ment’s response centered on the heinous nature of the crime, the suffering that Maxie’s family had endured, and the havoc that the stolen firearms were wreaking on the Indianapolis streets. After considering the arguments, the court sentenced Worthen to 10 years for the Hobbs Act robbery and 50 years for the crime of violence for a total of 60 years’ imprisonment. 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. 4 No. 15 3521 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. United States v. Smith, 759 F.3d 702, 706 (7th Cir. 2014). This makes perfect sense. When a defend ant pleads guilty to a crime and waives his right to an appeal, he acquiesces to the court’s discretion to impose a sentence that he knows will fall within a specified statutory range. In deed, that’s what makes the waiver knowing and intelligent, and thus enforceable. But if the court disregards that permis sible sentencing range and imposes a sentence exceeding that which the defendant knew was the harshest penalty he could receive, then there is no knowing and intelligent waiver at all. United States v. Gibson shows as much. 356 F.3d 761 (7th Cir. 2004). There, the defendant pled guilty to violating 18 U.S.C. § 371—conspiracy to commit mail and wire fraud. The district court sentenced him to 262 months, even though the crime carried a maximum penalty of only 60 months. Alt hough he waived his appeal rights, we allowed him to appeal his sentence, noting that we could not enforce a sentence that the law does not authorize. Id. at 763–66. Worthen contends that Gibson’s rationale applies here, too. Specifically, he notes that he received 60 years’ imprisonment for committing both a robbery and a crime of violence, but the crime of violence conviction is invalid. That leaves only the robbery conviction, which carries a maximum sentence of 20 years’ imprisonment. 18 U.S.C. § 1951(a). Accordingly, No. 15 3521 5 Worthen argues that, because his 60 year sentence exceeds the statutory maximum for the only viable conviction, we should allow his appeal. This argument misconstrues our holding in Gibson—a case that is easily distinguishable from this one. True enough, in Gibson, we considered the defendant’s appeal—irrespective of his appeal waiver—after concluding that his sentence ex ceeded the statutory maximum. But reaching that conclusion required nothing more than comparing the sentence that the statute allowed to the sentence actually imposed. It did not require us to determine that the underlying conviction was invalid beforehand, as Worthen would have us do here. And that distinction matters. 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. For if that were the law, then appeal waivers would lose all effect. That’s because we would have to consider an ap peal’s merits in every case. In doing so, if we were to conclude that the defendant’s conviction was not valid, then any sen tence imposed necessarily would exceed the statutory maxi mum because there can be no punishment without liability; in that scenario, we would hold that the defendant did not 6 No. 15 3521 waive his right to an appeal. And if we were to conclude that the defendant’s conviction was valid, then we would dismiss the appeal as waived so long as the sentence falls within the permissible statutory range; in that case, the appeal waiver would be irrelevant because we would have decided the ap peal on the merits anyway. Consequently, this rule would eviscerate the right to waive an appeal. Apart from contravening our longstanding precedent that appeal waivers are generally enforceable, such a rule would have perverse consequences. Many criminal defendants might benefit from waiving their appeal rights. In fact, Worthen so benefitted: in exchange for foregoing his appeal rights, the government agreed to drop some of the charges and further agreed to not seek the death penalty. Worthen per haps saved his life by waiving his appeal rights. If Worthen could then renege on his deal and maintain an appeal, then why would the government make these kinds of deals in the future? Why wouldn’t the government instead just charge de fendants like Worthen with all applicable crimes and see what sticks after the appeal? Worthen’s proposed rule is as undesir able as it is nonsensical. 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.
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