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United States v. Galloway

United States Court of Appeals, Seventh Circuit

March 4, 2019

United States of America, Plaintiff-Appellee,
v.
Jason Galloway, Defendant-Appellant.

          Argued December 4, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:16-cr-00012-RLY-MPB-1 - Richard L. Young, Judge.

          Before Bauer, Kanne, and Brennan, Circuit Judges.

          BRENNAN, CIRCUIT JUDGE

         Jason Galloway pleaded guilty to possessing ammunition as a felon. He now appeals his sentence, raising an unpreserved argument that the district court used an incorrect guideline range. We dismiss his appeal, however, because in his plea agreement Galloway waived his appellate rights.

         I.

         On January 21, 2016, police officers responded to a domestic violence 911 call from Galloway's ex-wife in Evansville, Indiana. The officers found Galloway a short distance from his ex-wife's house and arrested him. A search incident to arrest yielded four bullets from his pant pocket. Galloway, a convicted felon, was indicted for violating 18 U.S.C. § 922(g)(1) by possessing a firearm (a revolver found at his ex-wife's house) and ammunition (the bullets in his pocket).

         Before trial, the parties reached an agreement in which Galloway pleaded guilty to the ammunition count in exchange for dismissal of the firearm count (among other things). The written plea agreement that Galloway signed contained the following appellate waiver, which we repeat in full because of its importance to this case:

24. Direct Appeal: The defendant understands that the defendant has a statutory right to appeal the conviction and sentence imposed and the manner in which the sentence was determined. Acknowledging this right, and in exchange for the concessions made by the Government in this Plea Agreement, the defendant expressly waives the defendant's right to appeal the conviction imposed in this case on any ground, including the right to appeal conferred by 18 U.S.C. § 3742. The defendant further agrees that in the event the Court sentences the defendant to a sentence higher or lower than any recommendation of either party, regardless of the defendant's criminal history category or how the sentence is calculated by the Court, then the defendant expressly waives the defendant's right to appeal the sentence imposed in this case on any ground, including the right to appeal conferred by 18 U.S.C. § 3742. This waiver of appeal specifically includes all provisions of the guilty plea and sentence imposed, including the length and conditions [of] supervised release and the amount of any fine.

         Petition to Enter Plea of Guilty and Plea Agreement at 124, ECF No. 68.

         The second sentence in the paragraph above explains Galloway unconditionally waived his right to appeal his conviction. With respect to sentencing issues, however, the third sentence conditions Galloway's appellate waiver on a deviation by the district court from a recommendation made by one of the parties.

         At the change of plea hearing, the district court reviewed the language of the appellate waiver verbatim. The district court also engaged in the following colloquy with Galloway:

THE COURT: Mr. Galloway, what this paragraph tells us is that in exchange for concessions made to you by the United States in arriving at this plea agreement, if I accept the plea agreement and sentence you pursuant to the plea agreement, then you'll be giving up or waiving your right to appeal the conviction and ...

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