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United States v. Worthen

United States Court of Appeals, Seventh Circuit

November 28, 2016

United States of America, Plaintiff-Appellee,
v.
Darryl Anthony Worthen, Defendant-Appellant.

          Argued October 28, 2016

         Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 15-cr-00006 - Sarah Evans Barker, Judge.

          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 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.

         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 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.

         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 cameras. 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 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.

         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 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.

         The 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 years' imprisonment.

         Irrespective 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 invalid.

         Before 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.

         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. ยง 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 ...


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