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United States v. Marsh

United States Court of Appeals, Fourth Circuit

December 9, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KIRK RUSSELL MARSH, Defendant-Appellant.

          Argued: September 20, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:17-cr-00122-AJT-1)

         ARGUED:

          JAMES R. THEUER, JAMES R. THEUER, PLLC, NORFOLK, VIRGINIA, FOR APPELLANT.

          AIDAN TAFT GRANO, OFFICE OF THE UNITED STATES ATTORNEY, ALEXANDRIA, VIRGINIA, FOR APPELLEE.

         ON BRIEF:

          G. ZACHARY TERWILLIGER, UNITED STATES ATTORNEY, KATHERINE L. WONG, ASSISTANT UNITED STATES ATTORNEY, OFFICE OF THE UNITED STATES ATTORNEY, ALEXANDRIA, VIRGINIA, FOR APPELLEE.

          Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.

         Motion to dismiss appeal granted by published opinion. Judge Harris wrote the opinion, in which Judge Thacker joined. Chief Judge Gregory wrote an opinion concurring in part, dissenting in part, and dissenting in the judgment.

          PAMELA HARRIS, CIRCUIT JUDGE.

         Kirk Russell Marsh pleaded guilty to identity theft and fraud. At sentencing, the district court failed to advise Marsh of his right to appeal, in what Marsh identifies as a violation of Rule 32(j) of the Federal Rules of Criminal Procedure. Marsh ultimately did file an appeal, but not until well after the time limit for that filing had expired under Rule 4(b) of the Federal Rules of Appellate Procedure. The government promptly moved to dismiss Marsh's appeal as untimely.

         Marsh contends that his late filing should be excused by the district court's violation of Rule 32(j). We disagree. Because Rule 4(b)'s deadline is a mandatory claim-processing rule that must be strictly applied, the district court's error cannot excuse Marsh's untimely filing of his notice of appeal, and equitable doctrines are unavailable to extend the deadline. Our conclusion, however, does not render Rule 32(j) a nullity, as Marsh suggests; instead, Marsh may seek to remedy the district court's error in collateral proceedings. Accordingly, we grant the government's motion to dismiss Marsh's appeal.

         I.

         Marsh was indicted on three charges: bank fraud, in violation of 18 U.S.C. § 1344; aggravated identity theft, in violation of 18 U.S.C. § 1028A; and wire fraud, in violation of 18 U.S.C. § 1343. The government alleged that Marsh used his position as a loan officer at two federally insured banks to approve fraudulent loans to companies in which he had a personal stake, creating false documents and bank records in the process.

         Marsh and the government entered into a written plea agreement, under which Marsh pleaded guilty to all three counts against him. The agreement also included an appellate waiver, in which Marsh waived his "right to appeal the conviction and any sentence within the statutory maximum . . . on any ground whatsoever other than an ineffective assistance of counsel claim that is cognizable on direct appeal." J.A. 13-14. At his plea colloquy, Marsh acknowledged that he understood the appellate waiver in his plea agreement and that he had spoken with his lawyer about whether he should waive his right to appeal.

         Marsh was sentenced on November 17, 2017. Following argument and rulings on Marsh's objections, the district court adopted the Probation Office's Sentencing Guidelines calculation, which led to a range of 78 to 97 months on the two fraud charges followed by a 24-month consecutive sentence for identity theft. The district court then imposed a below-Guidelines sentence of 54 months for the two fraud charges and a consecutive 24-month sentence on the identity theft charge, for a total of 78 months imprisonment, to be followed by a three-year term of supervised release. Critically, at no point during sentencing did the district court advise Marsh of his remaining rights to appeal, as required by Rule 32(j). See Fed. R. Crim. P. 32(j)(1)(B) ("After sentencing - regardless of the defendant's plea - the court must advise the defendant of any right to appeal the sentence.").

         The court entered judgment the same day it sentenced Marsh, on November 17, 2017. Under Rule 4(b) of the Federal Rules of Appellate Procedure, a defendant's notice of appeal in a criminal case generally must be filed within 14 days of the entry of judgment. See Fed. R. App. P. 4(b)(1)(A)(i). It was not until August 15, 2018, however - 283 days after the entry of judgment - that Marsh noted his pro se appeal by submitting it through the mail system of the Bureau of Prisons. The government promptly filed a motion to dismiss Marsh's appeal as untimely, which Marsh opposed. This court then issued an order for supplemental briefing on the issue of timeliness, directing the parties to address whether the district court's non-compliance with Rule 32(j) or equitable tolling excused Marsh's late filing of his notice of appeal.

         II.

         A.

         At the outset, the government contends that the premise of this case is mistaken: The district court's failure to advise Marsh of his right to appeal, according to the government, was not a Rule 32(j) error at all. Under Rule 32(j)(1)(B), when a defendant pleads guilty, the district court, after imposing sentence, "must advise the defendant of any right to appeal the sentence." Fed. R. Crim. P. 32(j)(1)(B). But here, the government argues, no discussion of Marsh's appellate rights was required, because Marsh knowingly and voluntarily waived the right to appeal in his plea agreement. We disagree.

         The first problem for the government's argument is that Marsh's plea agreement expressly preserves his right to appeal his sentence based on "an ineffective assistance of counsel claim." J.A. 13-14. Because the text of Rule 32 requires the district court to "advise the defendant of any right to appeal the sentence," Fed. R. Crim. P. 32(j)(1)(B) (emphasis added), the district court was required to advise Marsh of his right, under the plain terms of his plea agreement, to an appeal for ineffective assistance. As the Supreme Court has cautioned, district courts "must be meticulous and precise in following each of the requirements of Rule 32 in every case," see Peguero v. United States, 526 U.S. 23, 27 (1999) (addressing failure to advise of appeal rights), and that includes advising a defendant of even a narrow right to appeal.

         Nor was the scope of the district court's error limited to the appeal rights expressly reserved in the appeal waiver. As we have held, a defendant who waives the right to appeal nevertheless "retains the right to obtain appellate review of his sentence on certain limited grounds," even if those grounds are not specified in the plea agreement. United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994). No appeal waiver, for instance, can bar a defendant's right to challenge his sentence as outside a statutorily prescribed maximum, "or based on a constitutionally impermissible factor such as race." United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); see also Attar, 38 F.3d at 732-33 (plea waiver does not bar appellate review of post-plea violation of right to counsel). And, of course, Marsh retained the right to argue on appeal that he did not enter into his appeal waiver knowingly and voluntarily, rendering that waiver invalid. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). In short, "[a]n appeal waiver does not always preclude an appeal," id., and the district court was required by Rule 32(j) to inform Marsh of his remaining, though strictly limited, right to appeal.

         We think the government's contrary argument is inconsistent not only with Rule 32(j)'s text, but also with the importance the Supreme Court has attached to "[t]he requirement that the district court inform a defendant of his right to appeal." Peguero, 526 U.S. at 26. It is not enough, the Court has explained, that the defendant is somehow made aware of his right to appeal, though that of course is critical. What is equally vital under Rule 32(j) is that advice about appeal rights "comes from the court itself." Id. at 27 (emphasis added). Relying on defense counsel is not a substitute, in part because there may be practical obstacles to communication once the defendant is taken into custody or if the post-sentencing "relationship between the defendant and the attorney [is] strained." Id. at 26. But also, as the Court emphasized in Peguero, requiring that the district court itself advise a defendant of "any right to appeal" disabuses the defendant of any concern he otherwise might have that the judge - "who may later rule upon a motion to modify or reduce the sentence" - will see the filing of an appeal as an "affront." Id. at 26-27.

         Rule 32(j), in other words, serves "important functions" that include but go beyond ensuring a defendant's knowledge of "any right to appeal." Id. at 26. Because the district court did not advise Marsh that he retained the right to appeal on certain limited grounds, it failed to comply with Rule 32(j).

         B.

         That brings us to the question on which we ordered briefing: Whether a district court's error in failing to inform a defendant at sentencing of a right to appeal can excuse a defendant's late filing of a notice of appeal under Rule 4(b). We conclude ...


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