United States v. Briana White

I

White met with co-defendants Hailey Gist-Holden (her fiancée), James King, and Kenyon Hawkins at the home she shared with Gist-Holden to plan a robbery of First Midwest Bank in Gary, Indiana. White was pregnant at the time, so she participated in planning and coordination while the other three committed the robbery. King was initially reluctant to participate, but White convinced him, stating she would do it herself if she were not pregnant. Her three co-defendants left the home for the robbery, taking with them two firearms owned by White. White facilitated the commission of the robbery by setting up a three-way call between herself, the pair robbing the bank (Gist- Holden and King), and the getaway driver (Hawkins). She also downloaded a police scanner app so she would know when the police were on their way. During the robbery, Gist-Holden shot and killed Robert Castellano, a recently retired police officer who was working at the bank as a security guard.

White pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and discharge of a firearm during a crime of violence resulting in murder, § 924(c)(1)(A). The plea agreement White signed included an appellate waiver under which she expressly waived her right to appeal or to contest her conviction and "all components"

of her sentence or the manner in which her conviction or her sentence was determined or imposed on any ground other than ineffective assistance of counsel. In exchange for her plea, the government agreed to recommend reductions for acceptance of responsibility and a sentence at the minimum of the guidelines range. At White's change-of-plea hearing, the district court thoroughly explained that White was giving up her right to appeal any decision it made regarding her conviction and sentence. F ED. R. CRIM. P. 11(b)(1)(N). The court reiterated that, "[e]ssentially, what this means is that I'm the last judge who's going to make any decisions about your case." The government noted that White's attorney had asked for a change to the appellate waiver that would allow White to appeal if the court's sentence exceeded the parties' recommendation, but the government did not agree. After finding the factual basis sufficient, the court accepted White's plea, finding it knowing and voluntary. A probation officer then prepared a presentence investigation report. For the armed bank robbery, the PSR calculated a total offense level of 40, starting with a base offense level of 43 and reducing it by three for acceptance of responsibility. U.S.S.G. §§ 2B3.1(c)(1), 2A1.1(a), 3E1.1(a)-(b). With a criminal history category of I and a statutory maximum of 300 months, this yielded a guidelines range of 292 to 300 months.

2

The range of imprisonment for the offense of discharge of a firearm during a crime of violence was a statutory mandatory minimum of 10 years and a maximum term of life, to run consecutively with the other count. The PSR recommended a sentence of 292 months' imprisonment on the armed bank robbery charge and a mandatory minimum consecutive 120 months' imprisonment on the firearm charge, for a total of 412 months' imprisonment.

The government argued for a guidelines calculation and sentence in line with the PSR. In her sentencing memorandum, White argued for a sentence of no more than 157 months' imprisonment because of the negative impact on children of incarcerated parents and because she did not know Gist-Holden would kill Mr. Castellano. At sentencing, the district court considered and overruled White's objection to the guidelines calculations, adopting the calculation in the PSR. The court considered White's testimony, letters from White's friends and family, and victim impact statements. The court then considered the 18 U.S.C. § 3553(a) factors, explaining that this was a violent offense and White was an active participant. The court noted that White was a smart individual with two master's degrees (one in criminal justice) and that she was working towards a Ph.D. at the time of her arrest. The court acknowledged that she had four children who were "surely going to be burdened" by her incarceration but noted that it was her actions and decisions that led to this outcome. The court explained the need to avoid unwarranted sentencing disparities with her co-defendants, noting that any disparity with King's and Hawkins's sentences was warranted because they cooperated and testified against Gist-Holden at trial while White did not. The court then sentenced White to 180 months' imprisonment on the armed bank robbery charge and 120 months' imprisonment on the firearm charge to run consecutively, for a total of 300 months' imprisonment. At the end of the sentencing hearing, the court explained the process of filing an appeal but reminded White that she had waived her right to appeal in her plea agreement.

II

White first argues that her appellate waiver is not enforceable because it was not knowing and voluntary. This court reviews de novo whether an appellate waiver is enforceable. United States v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010). It is well settled that defendants may waive their right to appeal in a written plea agreement, and we will enforce an appellate waiver as long as "it [was] made knowingly and voluntarily"

and is "express and unambiguous." Id. Here, White contends that her agreement did

3

not explicitly state that she could not challenge the length of her sentence and thus was too ambiguous to allow her to knowingly and voluntarily waive that right. But the length of the imprisonment is unambiguously a "component" of her sentence covered by her appellate waiver. See United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016). White also asserts that her appellate waiver was not knowing and voluntary because it was not freely negotiated. She argues that because the waiver was a standard and non-negotiable provision of all or most plea agreements for the Northern District of Indiana, she did not voluntarily agree to it. But White chose to sign the plea agreement as written, including the waiver, and affirmed that she understood the consequences of that choice at her change-of-plea hearing. The government's refusal to negotiate an appellate waiver provision does not make it invalid or coerced. See United States v. McGuire, 796 F.3d 712, 716-17 (7th Cir. 2015).

Finally, White maintains that her appellate waiver is not valid because it lacked consideration. But the waiver did not lack consideration—in return for pleading guilty and waiving her right to appeal, White received a reduction of her offense level for acceptance of responsibility and the government's agreement that it would recommend the sentence at the minimum of the guidelines range, helping her to avoid the statutory maximum. See United States v. Carson, 855 F.3d 828, 831 (7th Cir. 2017). In the alternative, White argues that even if her appellate waiver was knowing and voluntary, we should not enforce it because to do so would be a "miscarriage of justice." Some federal courts have declined to enforce an appellate waiver if doing otherwise would "work a miscarriage of justice." See United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001); United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003); United States

v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001). But this exception is applied in narrow circumstances such as sentences in excess of a statutory maximum, in violation of the terms of the plea agreement, or based on constitutionally impermissible factors such as race. Andis, 333 F.3d at 891-92; Teeter, 257 F.3d at 25 nn.9-10. Although this court uses different terminology, we have likewise said that "we could not enforce a sentence that the law does not authorize." United States v. Worthen, 842 F.3d 552, 555 (7th Cir. 2016) (citing United States v. Gibson, 356 F.3d 761, 763-66 (7th Cir. 2004) (vacating 262-month sentence where statutory maximum was 60 months notwithstanding appellate waiver)). But White does not point to any such miscarriage of justice. Her decision to enter into the plea agreement including the appellate waiver was knowing and voluntary, and the sentence is not contrary to law. White's disagreement with the length of her sentence in

4

light of her personal circumstances is not a "miscarriage of justice" for purposes of avoiding an appellate waiver in any jurisdiction.

Even if we did not enforce her appellate waiver, White has not rebutted the

"nearly irrebuttable presumption" that her below-guidelines sentence was reasonable. See United States v. Miller, 829 F.3d 519, 527 (7th Cir. 2016). White maintains that the sentence imposed is substantively unreasonable because the district court "did not give sufficient or any consideration" to the impact of the sentence on her young children. But the court did consider the impact her sentence would have on her children and the family members who would raise them in her absence, noting that this was a "weighty decision" and that he was "sorry for [her] children" but that this was the result of her own actions and choices. White's disagreement with the weight the judge attributed to this concern in pronouncing her sentence does not make the sentence substantively unreasonable.

White also contends that her sentence is substantively unreasonable because there was an unwarranted disparity between her sentence and the sentences of her co- defendants. She argues her sentence should be lower because she had a lesser role in the crime than King and Hawkins, who were sentenced to 192 months' and 210 months' imprisonment, respectively. But the district court explained that any disparity was warranted because King and Hawkins cooperated and testified against Gist-Holden, while White did not. Rewarding cooperation with reduced sentences, even accounting for White's claim that her co-defendants are more culpable, is not an unwarranted sentencing disparity. See United States v. Harris, 791 F.3d 772, 782 (7th Cir. 2015). Because White cannot establish that she is similarly situated to her co-defendants who testified, she cannot establish an unwarranted disparity in sentencing.

DISMISSED

5