WIGGINS, Circuit Judge:
Ollie Johnson appeals a 10-year sentence imposed after he pled guilty to possession of heroin with intent to distribute. In the plea agreement he waived his right to appeal. He now argues that the waiver does not encompass appeal of issues arising out of a law enacted in the period between his plea and sentencing. We are not persuaded. Accordingly, we dismiss Johnson's appeal as waived.
On October 6, 1993, Johnson was indicted on two counts: (1) possession of heroin with intent to distribute (21 U.S.C. § 841(a)(1)), and (2) importation of heroin (21 U.S.C. § 952(a)). On June 24, 1994, Johnson executed and filed a written plea agreement and pled guilty to count one. The plea agreement, acknowledging that count one carried a mandatory minimum sentence of ten years' incarceration, stated that Johnson waived "the right to appeal any sentence imposed by the district judge." The waiver was not conditioned on the imposition of any particular sentence or range.
Johnson's offense level was 31. His three criminal history points
The district court, sua sponte, raised the question of whether Johnson could qualify for sentencing under the newly enacted Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (the "Crime Bill"), which, among other provisions, added subsection (f) to 18 U.S.C. § 3553. The new section 3553(f) allows a court to sentence certain drug offenders under the Guidelines without regard to statutory minimum sentences. The court ultimately concluded that the new section 3553(f) did not apply to Johnson and, therefore, did not allow the court to ignore the 120-month mandatory minimum. Section 3553(f) applies only if the offender has "not more than 1 criminal history point." Johnson had three, and the court determined as a matter of law that it did not have the authority to reduce Johnson's points for purposes of section 3553(f). Accordingly, the court sentenced Johnson to the statutory minimum of 120 months, followed by five years of supervised release and a special assessment of $50. Johnson appealed on the ground that the sentencing court erred in believing it had no authority to sentence Johnson under section 3553(f).
The government moved to dismiss the appeal on the ground that Johnson had waived his right to appeal his sentence. Johnson opposed the motion on the ground that, although he knowingly and intelligently waived all appealable issues from the sentence based upon the status of the law at the time of his plea and waiver, such voluntary relinquishment of known rights was not intended to encompass, and could not logically extend to, appeal of a sentencing error premised upon a law not yet enacted at the time of the waiver.
We divide Johnson's argument into two sub-issues: First, was the waiver intended
The temporal scope of an appeal waiver appears to be an issue of first impression in the federal courts. Although a plethora of cases supports the enforceability of waivers of appeal contained in plea agreements, such cases primarily focus on the adequacy of the colloquy at the Fed.R.Crim.P. 11 hearing. Only a handful of cases interpret an appeal waiver or discuss its scope,
We hold that Johnson's appeal waiver encompasses appeals arising out of the law applicable to his sentencing. On its face, Johnson's waiver does not appear to be limited to issues arising from the law as it stood at the time of his plea: the waiver refers to "any sentence imposed by the district judge," not "any sentence imposed under the laws currently in effect." Although the sentencing law changed in an unexpected way, the possibility of a change was not unforeseeable at the time of the agreement. Johnson was presumably aware that the law in effect at the time of sentencing, not the time of the plea, would control his sentence if the change in law did not increase his sentencing exposure. See U.S.S.G. § 1B1.11 (Nov. 1993). Therefore, a waiver of an appeal of "any sentence" is most reasonably interpreted as intending to waive appeals arising out of the district court's construction of the laws that actually determine Johnson's sentence, regardless of when they were enacted.
Having concluded that the waiver was intended to encompass the type of issue raised on this appeal, we go on to consider whether the waiver could be knowing and voluntary as to laws enacted after the plea was entered into.
An argument generally similar to Johnson's was rejected by this court in Navarro-Botello, 912 F.2d at 320. Navarro-Botello claimed that his guilty plea, which included a waiver of his right to appeal, was involuntary because he could not make a knowing and intelligent waiver of unknown rights, and he could not "know or understand what appellate issues may arise until after sentencing." Id. The court responded that "[the defendant] knew he was giving up possible appeals, even if he did not know exactly what
We therefore DISMISS Johnson's appeal.