Submitted: May 13, 2019
from United States District Court for the District of South
Dakota - Rapid City
BENTON, WOLLMAN, and GRASZ, Circuit Judges.
Garrett Williams pled guilty to two counts of attempted
sexual exploitation of a minor in violation of 18 U.S.C.
§ 2251(a) and (e). He appeals his consecutive sentences.
Having jurisdiction under 28 U.S.C. §1291, this court
on Williams' total offense level of 43 and his criminal
history category of I, the Sentencing Guidelines recommend
life imprisonment. However, under 18 U.S.C. § 2251(e),
the statutory maximum sentence is 30 years for each count, or
60 for both. The district court sentenced Williams to consecutive
sentences of 360 months' imprisonment on each count, for
a total custodial sentence of 720 months (60 years). Williams
asserts that (1) the district court erred in making his
sentences consecutive, rather than concurrent, and (2) his
sentence creates an unwarranted disparity and is
government argues that the written plea agreement forecloses
the appeal. "As a general rule, a defendant is allowed
to waive appellate rights." United States v.
Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc).
However, the government first must prove that "the
appeal is clearly and unambiguously within the scope of the
waiver." United States v. McIntosh, 492 F.3d
956, 959 (8th Cir. 2007) (cleaned up). The defendant also
must have entered into the plea agreement "knowingly and
voluntarily." Andis, 333 F.3d at 890. This
court "will not enforce a waiver where to do so would
result in a miscarriage of justice." Id. This
court reviews de novo "[w]hether a valid waiver of
appellate rights occurred." United States v.
Sisco, 576 F.3d 791, 795 (8th Cir. 2009).
a plea agreement is ambiguous, the ambiguities are construed
against the government." Margalli-Olvera v.
I.N.S., 43 F.3d 345, 353 (8th Cir. 1994). In the plea
agreement, Williams waived his right "to appeal any
non-jurisdictional issues" with these exceptions:
The parties agree that excluded from this waiver is the
Defendant's right to appeal any decision by the Court to
depart upward pursuant to the sentencing guidelines as well
as the length of his sentence for a determination of its
substantive reasonableness should the Court impose an upward
departure or an upward variance pursuant to 18 U.S.C. §
The Defendant understands he may not appeal a sentence up to
and including his 30 year recommendation as set forth in
paragraph G, even if that sentence is reached via upward
departure or variance.
plea agreement thus prohibits Williams from appealing a
sentence "up to and including his 30 year
recommendation." This could be interpreted to mean that
Williams may appeal a total sentence longer than 30 years. In
this case-where 30 years was the mandatory minimum for both
counts combined (15 years each), and also the statutory
maximum on each count individually-the waiver's reference
to "30 year recommendation" is unclear and
the waiver, the magistrate judge explained that Williams
could appeal "if there's an upward departure that
goes above and beyond the 30 years" or "if an
upward departure variance would place you above the 30-year
mandatory minimum and you receive a sentence as such."
The government admits this explanation "lacked optimal
clarity." This court agrees. The explanation does not
clarify the ambiguous language of the written agreement, and
it does not ensure that Williams understood the scope of the
waiver. See United States v. Fugate, 158 Fed.Appx.
748, 749 (8th Cir. 2005) (before accepting a guilty plea, the
court must ensure the defendant understands the waiver of
the appeal waiver is ambiguous and the district court did not
adequately ensure Williams entered into it knowingly and