December 4, 2018
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.
Bauer, Kanne, and Brennan, Circuit Judges.
BRENNAN, CIRCUIT JUDGE
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.
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).
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.
to Enter Plea of Guilty and Plea Agreement at 124, ECF No.
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.
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 ...