United States v. Tineka McLaughlin

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 14-4920

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

TINEKA S. MCLAUGHLIN,

Defendant − Appellant,

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00057-F-1)

Argued: January 28, 2016 Decided: February 16, 2016

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Dismissed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Judge Thacker joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. WILKINSON, Circuit Judge:

This case concerns the proper construction of a waiver of

appellate rights signed by Tineka McLaughlin as part of her plea

agreement. She argues that despite the waiver, she is still

allowed to challenge on appeal the district court’s imposition

of a four-level role-in-the-offense enhancement under Section

3B1.1(a) of the United States Sentencing Guidelines. For the

reasons that follow, we believe the issue was within the scope

of her waiver. We accordingly dismiss this appeal.

I.

Tineka McLaughlin pleaded guilty to bank fraud in violation

of 18 U.S.C. § 1344 after she participated in an ATM fraud

scheme in Fayetteville, North Carolina. As part of her plea

agreement, McLaughlin agreed

To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant’s guilty plea.

J.A. 42-43. At her August 4, 2014 plea hearing, the district

court questioned McLaughlin, asking, “Do you understand you

2 reserve only the right to appeal from an upward departure from

the advisory guideline range established at sentencing and that

you otherwise waive all rights to appeal whatever sentence is

imposed . . . ?” J.A. 39. McLaughlin responded, saying, “Yes,

sir.” Id.

The district court subsequently sentenced McLaughlin to pay

restitution and to serve twenty-seven months’ imprisonment. Two

aspects of McLaughlin’s sentence are relevant to this appeal.

First, the court calculated McLaughlin’s Guideline range using a

four-level role-in-the-offense enhancement pursuant to U.S.S.G.

§ 3B1.1(a). This yielded an advisory Guideline calculation of 15

to 21 months. Second, the district court imposed an upward

departure sentence under U.S.S.G. § 4A1.3(a)(1), sentencing

McLaughlin to 27 months on the ground that the lower Guideline

range underestimated “the seriousness of [McLaughlin’s] criminal

history and likelihood of recidivism.” J.A. 107.

McLaughlin appealed. She appealed only the § 3B1.1(a)

enhancement, not the upward departure. The United States moved

to dismiss, arguing that she waived her right to appeal issues

related to the establishment of her advisory Guideline range.

McLaughlin countered, arguing that because she received “a

sentence in excess of the applicable advisory Guideline range

that [was] established at sentencing,” the appeal could go

3 forward, even though the substance of the appeal did not

actually concern the upward departure.

The issue is not one that is unique to this case. See

United States v. Shawakha, 410 F. App’x 658 (4th Cir. 2011).

II.

We start by examining the text of the waiver. The operative

provision has two clauses, a waiver clause and a reservation

clause. The waiver clause waives all right to appeal “whatever

sentence is imposed on any ground, including any issues

[relating] to the establishment of the advisory Guideline

range.” J.A. 42. The reservation clause then withdraws from the

waiver “only the right to appeal from a sentence in excess of

the applicable advisory Guideline range that is established at

sentencing.” Id.

McLaughlin argues that under the reservation clause, she

has a right to challenge any part of a sentence when the overall

sentence represents an upward departure from the Guideline

range. In other words, she argues that “a sentence” means

“anything in that sentence.”

This reading focuses on one clause in the agreement at the

expense of the agreement in its entirety. As a matter of

tactics, the oversight is understandable, as the agreement in

its entirety contains a waiver provision that McLaughlin would

prefer to overlook.

4  That waiver provision quite specifically waives the right

to appeal the sentence “on any ground, including any issues that

relate to the establishment of the advisory Guideline range.”

J.A. 42. McLaughlin’s appeal of the 3B1.1(a) enhancement is just

such an issue. It relates to the establishment of the advisory

Guideline range and therefore lies at the heart of the waiver

clause.

McLaughlin’s selective reading of the waiver provision

would render this heart of it superfluous. Under McLaughlin’s

reading, the waiver with respect to appeals of sentences may as

well have read:

To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing.

The language “whatever sentence is imposed on any ground,

including any issues that relate to the establishment of the

advisory Guideline range” is conspicuously absent from

McLaughlin’s interpretation. But “the interpretation of plea

agreements is rooted in contract law.” United States v. Peglera,

33 F.3d 412, 413 (4th Cir. 1994). And “[c]ontract terms must be

construed to give meaning and effect to every part of the

contract.” Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1127

(4th Cir. 1993). We therefore decline McLaughlin’s invitation to

“reduce[]” much of her waiver “to mere surplusage.” Id.

5  McLaughlin also argues that the plea agreement is at least

ambiguous and that ambiguity should be construed in her favor.

But the fact that parties in an adversary system unsurprisingly

argue for different interpretations of an agreement does not in

and of itself render an agreement ambiguous. In determining

whether an agreement is ambiguous, courts “examine the entire

contract,” considering “[p]articular words . . . not as if

isolated from the context, but in the light of the obligation as

a whole.” PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714

F.3d 161, 173 (4th Cir. 2013) (quoting William C. Atwater & Co.

v. Panama R.R. Co., 159 N.E. 418, 419 (N.Y. 1927)). “Form should

not prevail over substance, and a sensible meaning of words

should be sought.” Id.

Here, taken as a whole, the agreement makes good sense. It

allows challenges to upward departures from a Guideline range,

but not challenges to the establishment of a Guideline range.

McLaughlin was advised of this reading during her plea hearing

and yet raised no objection. The district court, moreover, did

not commit any error, much less plain error, in conveying this

understanding to McLaughlin in open court.

McLaughlin does not, for whatever reason, challenge her

sentence’s upward departure, which she is permitted to do, but

instead challenges the establishment of her Guideline range,

6 which she is forbidden to do. This has her agreement in reverse.

We therefore dismiss her appeal.

DISMISSED

7