October 28, 2016
from the United States District Court for the Southern
District of Indiana, New Albany Division. No. 15-cr-00006 -
Sarah Evans Barker, Judge.
Ripple, Kanne, and Rovner, Circuit Judges.
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 during 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.
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 confederates-his
brother Dejuan and cousin Darion Harris-an opportunity 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.
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.
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
cameras. They then left the store, heading back to
Indianapolis. En route, Worthen threw the murder weapon and
laptop into a cornfield.
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
confederates 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 firearms remain unrecovered.
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 licensee 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 conviction on a
crime-of-violence charge authorizes a sentence of death or
life imprisonment, 18 U.S.C. § 924(j)(1). Worthen
entered 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
government agreed to drop the other charges and promised to
not seek the death penalty.
district court held the sentencing hearing on November 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 circumstances, and his low risk for future violence. The
government'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
of the appeal waiver, Worthen now appeals his conviction,
arguing that Hobbs Act robbery-the predicate 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
we can address this argument, Worthen must convince us that
he has not waived his right to an appeal. Generally 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 exceptions to
this rule-one of which is that a defendant may always 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 defendant
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. Indeed, that's what makes the waiver knowing and
intelligent, and thus enforceable. But if the court
disregards that permissible 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.
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.
Although he waived his appeal rights, we allowed him to
appeal his ...