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Date: 11-01-2021
Case Style:
United States of America v. ERIC GOODALL
Case Number: 18-10004
Judge: Kenneth Kiyul Lee
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Elizabeth Olson White (argued), Appellate Chief; Peter S.
Levitt, Assistant United States Attorney
Defendant's Attorney:
Description:
San Francisco, CA - Criminal defense lawyer represented defendant
with seeking to vacate his conviction and sentence for brandishing a firearm in relation to a crime of violence charge.
Goodall and his crew rob a series of stores in Las Vegas.
In a span of two months, Eric Goodall and his two
associates, T.P.F. and P.A.V., perpetrated a series of armed
robberies in Las Vegas. The group first targeted T.P.F.’s former employer, the Beauty Supply Warehouse. T.P.F.
dropped Goodall and P.A.V. off at the store. Once inside,
Goodall brandished a firearm and demanded that the store
clerks turn over all the cash in the store. After the workers
handed over about $3,500, Goodall and P.A.V. escaped and
jumped into T.P.F.’s getaway car. Using some of their illgotten gains from the robbery, Goodall illegally bought a
TEC-9 handgun.
About a month later, the trio then set their sights on a
different Beauty Supply Warehouse. T.P.F. again dropped
Goodall and P.A.V. off at the store. The pair repeated their
routine with Goodall clutching his new TEC-9 gun and
demanding cash from the register. After clearing the cash
register, Goodall and P.A.V. forced the manager and his
employees, at gunpoint, to open the safe in the back of the
store. After taking the cash, the pair fled in T.P.F.’s getaway
car. They made off with $1,900.
The group struck again about a week later at an
O’Reilly’s Auto Parts store. This time, all three men entered
the store. Goodall acted as a lookout while T.P.F. and
P.A.V. wielded handguns and demanded the money in the
cash register. Again, the three men ordered the clerks to
open the safe in the back of the store. Despite threats to
6 UNITED STATES V. GOODALL
shoot them, the clerks could not open the safe because of its
ten-minute timer, so the trio fled with only $1,135.92.
Goodall then split off from the group and went solo. He
drove to a second O’Reilly’s on West Craig Road with his
TEC-9. Flashing his TEC-9, Goodall demanded cash from
the register before forcing the clerks to the back of the store
to open the safe. In total, he left with $615. The next day,
Goodall targeted a Cricket Wireless Store. Repeating his
strategy, Goodall left the store with $3,848 from the store’s
register and safe. Two days later, Goodall robbed another
Cricket Wireless store. This time, Goodall became more
violent. When the employees could not open the safe,
Goodall began counting down from five, threatening to
shoot them when he reached zero. Goodall eventually left
the store with just the petty cash box containing $600.
Later that day, Goodall reunited with T.P.F. and P.A.V.
for what would be the group’s last heist. In Goodall’s words,
the group wanted to “go big,” this time targeting the National
Jewelry Liquidation Center. In preparation, the group went
to Wal-Mart to purchase rubber gloves and pantyhose. They
arrived at the jewelry store just before 2:00 P.M. The
jewelry store’s security was far tighter, employing an “airlock” entry system. Goodall and P.A.V. posed as cleaners
to gain entry. Once the staff unlocked the door, Goodall and
P.A.V. donned their pantyhose face masks and entered with
firearms in hand. As Goodall and P.A.V. ordered the
customers and employees to the floor, T.P.F. backed the
vehicle up to the store’s doors, preventing anyone from
entering or exiting.
Goodall and P.A.V. repeatedly threatened those inside
the store as Goodall forced the manager at gunpoint to open
display cases and a timed safe. In total, the pair stuffed over
$700,000 in watches, jewelry, and other valuable items into
UNITED STATES V. GOODALL 7
a knapsack. Hearing a helicopter overhead and fearing law
enforcement’s imminent arrival, Goodall and P.A.V. hopped
into the getaway vehicle with their knapsack. Unknown to
them, one of the items contained a GPS tracking beacon.
T.P.F. sped away from the scene. But the Las Vegas
police used the GPS beacon to close in on the getaway car.
Driving recklessly to evade arrest, T.P.F. struck a curb near
the Mirage Hotel and Casino. Goodall and P.A.V. jumped
out of the car and fled on foot. The police, however, caught
up to them and arrested them.
II. Goodall agrees to a plea deal.
A grand jury returned a four-count indictment against
Goodall, charging him with two counts of Hobbs Act
Conspiracy1 (Counts One and Two), 18 U.S.C. § 1951(a),
and two counts of brandishing a firearm during and in
relation to a crime of violence (Counts Three and Four),
18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The two Hobbs Act
Conspiracy charges served as the predicate “crimes of
violence” for the § 924(c) charges.
Goodall pleaded guilty to Counts One, Two, and Four on
May 26, 2015. The government agreed to drop Count Three,
under which Goodall, if convicted, would have faced an
additional 25-year consecutive sentence. United States v.
Beltran-Moreno, 556 F.3d 913, 915 (9th Cir. 2009). As part
of the plea agreement, and central to this appeal, Goodall
agreed to a broad appellate waiver:
1 The Hobbs Act prohibits actual or attempted robbery or extortion
affecting interstate or foreign commerce in any way or degree. 18 U.S.C.
§ 1951. Section 1951 also proscribes conspiracy to commit robbery or
extortion without reference to the conspiracy statute at 18 U.S.C. § 371.
8 UNITED STATES V. GOODALL
The defendant knowingly and expressly
waives: (a) the right to appeal any sentence
imposed within or below the applicable
Sentencing Guidelines range as determined
by the Court; (b) the right to appeal the
manner in which the Court determined the
sentence on the grounds set forth in 18 U.S.C.
§ 3742; and (c) the right to appeal any other
aspect of the conviction or sentence and any
order of restitution or forfeiture.
The defendant also knowingly and expressly
waives all collateral challenges, including
any claims under 28 U.S.C. § 2255, to his
conviction, sentence, and the procedure by
which the Court adjudicated guilt and
imposed sentence . . . .” (emphasis added).
The only grounds for appeal that Goodall preserved were
“non-waivable claims of ineffective assistance of counsel”
and sentences that are “an upward departure or an upward
variance from the Sentencing Guidelines range determined
by the Court.”
Goodall appeared before the district court for sentencing
on December 20, 2017. Although Goodall had pleaded
guilty, he now questioned the legality of his § 924(c)
conviction. One month after Goodall pleaded guilty, the
Supreme Court held in Johnson v. United States, 576 U.S.
591, 606 (2015), that the so-called “residual clause”2 in the
2 The Armed Career Criminal Act defines a “violent felony” as “any
crime punishable by imprisonment for a term exceeding one year . . . ”
that “has as an element the use, attempted use, or threatened use of
physical force against the person of another” or “is burglary, arson, or
UNITED STATES V. GOODALL 9
definition of a “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally
vague. Goodall argued that the similarly worded “residual
clause” in § 924(c)’s definition of a “crime of violence” was
also unconstitutionally vague. If true, Goodall maintained
that his conviction for Hobbs Act conspiracy could not
constitute a “crime of violence,” making his § 924(c)
conviction legally defective.
The government urged the district court to focus on the
facts Goodall admitted in the plea agreement: that he
conspired to commit—and committed—eight armed
robberies, and he personally brandished a firearm during
those robberies. The government claimed that Goodall
could have been charged with eight counts of Hobbs Act
robbery (rather than conspiracy), which constitutes a crime
of violence. If so, he would have faced 127 years in prison
but for the leniency under the plea agreement that Goodall
now attacks.
Before sentencing, the parties jointly agreed to
recommend a 240-month sentence to the court. The court
rejected the stipulated 240-month sentence as “excessive”
under the sentencing factors in 18 U.S.C. § 3553(a). Instead,
the court sentenced Goodall to only 168 months: 84 months
for the Hobbs Act conspiracy counts and 84 months for the
§ 924(c) conviction, the mandatory minimum sentence for
that offense. As for Goodall’s objection under Johnson, the
extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B) (emphasis added). The emphasized clause is known as
the “residual clause.” Johnson, 576 U.S. at 594.
10 UNITED STATES V. GOODALL
court advised, without deciding the issue, that Goodall could
try his luck on appeal.
III. Goodall appeals to vacate his § 924(c) conviction.
On December 29, 2017, Goodall filed an appeal, asking
this court to vacate his § 924(c) conviction and its 84-month
sentence. About a year and a half later, the Supreme Court
held in United States v. Davis that § 924(c)’s “residual
clause” defining a “crime of violence” was
unconstitutionally vague. 139 S. Ct. 2319, 2336 (2019). We
ordered supplemental briefing, asking the parties to address
Davis’s effect on this appeal.
Goodall asserts that, post-Davis, only § 924(c)’s
“elements clause”3 defining a “crime of violence” remains
valid and that his conviction must be vacated because a
Hobbs Act conspiracy is not a “crime of violence” under the
“elements clause.” The government concedes that a Hobbs
Act conspiracy is not a “crime of violence” under the
“elements clause,” but argues that Goodall’s appellate
waiver bars his challenge. And even if Goodall succeeds on
his appeal, the government argues that he likely will be
3 Section 924(c) defines a “crime of violence” as a felony that “has
as an element the use, attempted use, or threatened use of physical force
against the person or property of another” (i.e., the “elements clause”),
or “that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.” (i.e., the “residual clause”). 18 U.S.C.
§ 924(c)(3).
UNITED STATES V. GOODALL 11
resentenced to far more prison time than the 168 months he
had received.4
STANDARD OF REVIEW
We review de novo whether a defendant waived his right
to appeal under a plea agreement. United States v. Watson,
582 F.3d 974, 981 (9th Cir. 2009).
ANALYSIS
I. Goodall’s Appellate Waiver Forecloses Any
Challenge to His Conviction.
An appellate waiver is enforceable if “(1) the language
of the waiver encompasses [the defendant’s] right to appeal
on the grounds raised, and (2) the waiver is knowingly and
voluntarily made.” United States v. Jeronimo, 398 F.3d
1149, 1153 (9th Cir. 2005), overruled on other grounds by
United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.
2007) (en banc). Because the waiver provision in Goodall’s
plea agreement meets both conditions, we must enforce it.
4 On remand, Goodall would remain obligated under his plea
agreement to request a sentence of 240 months in prison. If the court
accepted this recommendation, Goodall would serve another six years in
prison. But if Goodall were to request less than 240 months, he would
breach the plea agreement, freeing the government from its obligations.
The government claims that it could then pursue a superseding
indictment and conviction on eight substantive Hobbs Act robberies and
the eight corresponding § 924(c) offenses, which would result, upon
conviction, in mandatory prison time of 56 years on the § 924(c) counts,
along with any time the court might impose on the robbery convictions.
We need not, and do not, decide whether the government’s interpretation
is correct.
12 UNITED STATES V. GOODALL
A. The text of the broad appellate waiver bars any
challenge based on Davis.
We start with the “fundamental rule that plea agreements
are contractual in nature and are measured by contract law
standards.” United States v. Clark, 218 F.3d 1092, 1095 (9th
Cir. 2000) (brackets omitted) (internal quotation marks
omitted). We thus “will generally enforce the plain language
of a plea agreement if it is clear and unambiguous on its
face.” Jeronimo, 398 F.3d at 1153 (applying rule to waiver
provision).
Goodall agreed to a broad appellate waiver: He waived
“the right to appeal any . . . aspect of the conviction or
sentence.” (emphasis added). The provision has two narrow
exceptions to the broad waiver: an ineffective assistance of
counsel claim and an upward departure from the Sentencing
Guidelines range. The parties—and we—agree that neither
exception applies here. Goodall, however, insists that the
waiver does not preclude his appeal because it did not
explicitly relinquish his appeal based on Davis. In other
words, Goodall asks us to require the government to
enumerate every possible ground for appeal, both known and
unknown, to enforce a plea deal.
But the plain text of the plea agreement forecloses
Goodall’s argument. He waived his “right to appeal any . . .
aspect of the conviction or sentence.” And under the
expressio unius canon of construction, the two narrow
exceptions to the waiver confirm that Goodall’s waiver of
“any other aspect of his conviction or sentence” includes this
appeal. See Murphy v. DirecTV, Inc., 724 F.3d 1218, 1234
(9th Cir. 2013) (under the expressio unius rule of contract
interpretation, the mention of one thing implies the exclusion
of all others). Faced with this type of broad waiver, we
“have consistently read general waivers of the right to appeal
UNITED STATES V. GOODALL 13
to cover all appeals.” United States v. Rahman, 642 F.3d
1257, 1259 (9th Cir. 2011) (emphasis added). And even if a
plea agreement “does not specifically contemplate” the
defendant’s argument on appeal, a waiver’s “broad language
clearly bars” bringing an appeal. Jeronimo, 398 F.3d at 1154
(holding that defendant’s waiver of “any and all rights to
appeal” precludes appeals based on “all grounds”). That is
the case here.
B. Goodall knowingly and voluntarily waived his
right to challenge his § 924(c) conviction.
We next consider Goodall’s argument that his waiver—
even if it applies to his Davis challenge—was not knowing
and voluntary. After Goodall entered his guilty plea, the
Supreme Court decided Johnson and Davis. Goodall
contends that these two cases render his appellate waiver
unknowing and involuntary because he could not possibly
have contemplated this argument when he waived his
appellate rights.
We have found appellate waivers knowing and voluntary
despite later changes in the law. “[A] change in the law does
not make a plea involuntary and unknowing.” United States
v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005). That a
defendant does not “foresee the specific issue that he now
seeks to appeal does not place that issue outside the scope of
his waiver.” United States v. Johnson, 67 F.3d 200, 203 (9th
Cir. 1995); see also United States v. Navarro-Botello,
912 F.2d 318, 320 (9th Cir. 1990) (rejecting the argument
that an appellate waiver is “involuntary because it is
logically impossible to make a knowing and intelligent
waiver of unknown rights.”).
When a defendant waives his appellate rights, he knows
that he is giving up all appeals, no matter what unforeseen
14 UNITED STATES V. GOODALL
events may happen. In exchange for the waiver, a defendant
receives “certainty derived from the negotiated plea with a
set sentence parameter.” Navarro-Botello, 912 F.2d at 320;
see also Town of Newton v. Rumery, 480 U.S. 386, 394
(1987) (“[T]he certain benefits of escaping criminal
prosecution exceed the speculative benefits of prevailing” in
a future action.). Here, the government dropped one
§ 924(c) count (which reduced the mandatory minimum
sentence by 25 years) and agreed to recommend a 240-
month sentence. When Goodall agreed to this plea
agreement, he apparently believed that it was a good deal for
him. Just because Goodall’s choice looks less favorable
“with the benefit of hindsight[] does not make the choice
involuntary.” Navarro-Botello, 912 F.2d at 320. A plea
agreement is no different in this respect from any other
contract in which someone may have buyer’s remorse after
an unforeseen future event—the contract remains valid
because the parties knowingly and voluntarily agreed to the
terms. There is no do-over just because a defendant later
regrets agreeing to a plea deal. We thus find that Goodall’s
waiver of his appellate rights was knowing and voluntary.
II. The “illegal sentence” exception to an appellate
waiver does not apply.
Finally, Goodall latches onto our decision in Torres,
828 F.3d at 1125, in which we held that an appellate waiver
does not apply to an “illegal sentence.” Goodall argues that
we should extend Torres beyond an “illegal sentence” and
invalidate an appellate waiver if the conviction was later
found to be “illegal.” We decline to do so.
In Torres, we refused to enforce an appellate waiver
when the defendant received a sentencing enhancement
under an unconstitutionally vague provision of the
Sentencing Guidelines. Torres, 828 F.3d at 1125. Because
UNITED STATES V. GOODALL 15
the defendant’s sentence with the enhancement was greater
than what was statutorily authorized for the conviction, his
sentence was “illegal,” and we vacated the sentence. Id.
But this case is different from Torres. Rather than
challenge his sentence, Goodall seeks to vacate his § 924(c)
conviction. And that key difference matters for two reasons.
First, we limited Torres to an “illegal sentence” based in
part on the technical definition of that term. As we have
explained, “the phrase ‘illegal sentence’ has a precise legal
meaning,” which does not include illegal convictions. See
United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999)
(quoting United States v. Fowler, 794 F.2d 1446, 1449 (9th
Cir. 1986)). An illegal sentence is one “not authorized by
the judgment of conviction, . . . in excess of the permissible
statutory penalty for the crime, or [that] is in violation of the
Constitution.” United States v. Johnson, 988 F.2d 941, 943
(9th Cir. 1993). This definition is imported from our
circuit’s case law interpreting an earlier version of Federal
Rule of Criminal Procedure 35(a), which stated that a “court
may correct an illegal sentence at any time.” See Fowler,
794 F.2d at 1448. That exception for correcting an illegal
sentence allowed the defendant in Torres to vacate his illegal
sentence. Rule 35, however, did not authorize (and does not
authorize) corrections for illegal convictions. See Johnson,
988 F.2d at 943 (rejecting Rule 35 motion because defendant
“argue[d] he should not have been convicted . . . .”).
Second, our rationale for the “illegal sentence” exception
rests on the inherent uncertainty in sentencing. When the
parties agree to a plea deal, the sentence remains unknown
because the sentencing “does not occur contemporaneously
with the plea and waiver.” United States v. MedinaCarrasco, 815 F.3d 457, 464 (9th Cir. 2015) (Friedman, J.,
dissenting). Rather, the district court decides later and need
16 UNITED STATES V. GOODALL
not follow the plea deal’s recommendation or the Sentencing
Guidelines. So the court may impose a longer sentence than
what the parties agreed because it believes that the defendant
deserves a harsher sentence. Or the court may issue a longer
sentence because it erred in applying the Sentencing
Guidelines. And in some cases, a court might mistakenly
impose a sentence greater than the one authorized by law.
Thus, “the mistakes from which one might have reason to
appeal have not yet occurred at the time a defendant waives
the right to appeal or collaterally attack” the sentence. Id. In
short, the sentence is beyond the control of the parties and
their plea agreement.
But that uncertainty does not exist for convictions. The
contours of a conviction are fully known when the defendant
pleads guilty and waives his appellate rights. The defendant
admits his guilt, the facts alleged in the plea agreement, and
the sufficiency of the facts to establish his guilt on each
element of the crime charged. He also knows precisely what
he is “giving up in exchange for the benefits of the guilty
plea at the very moment the plea is entered—a trial and the
constitutional rights that accompany it.” Id. Although there
always remains a chance the law could change in the
defendant’s favor, the defendant knowingly and voluntarily
assumes that risk because he receives a presumably
favorable deal under existing law.
The Seventh Circuit recently agreed that defendants
assume the risk of later changes in the law. In Oliver v.
United States, 951 F.3d 841 (7th Cir. 2020), the Seventh
Circuit rejected an argument identical to Goodall’s. The
defendants pleaded guilty to multiple charges, including a
§ 924(c) charge, after committing a string of robberies. Id.
at 843. In exchange for the government’s agreement to
dismiss several charges and recommend a more lenient
UNITED STATES V. GOODALL 17
sentence, the defendants waived their right to appeal their
convictions or sentences. Id. And, as here, the defendants
later sought to vacate their § 924(c) convictions under
Johnson and Davis, arguing that they were not convicted of
a predicate “crime of violence.” Id. at 844.
The Seventh Circuit denied their challenge, holding the
defendants to the terms of their plea bargain. While the
Seventh Circuit does not recognize an “illegal sentence”
exception, the court enforced the appellate waiver because it
held that defendants assume the risk that the law may
change. Id. at 845. The “major purpose of an [appellate]
waiver is to account in advance for unpredicted future
developments in the law.” Id. at 845. Waivers “allocate the
risk of the unknown for both sides: ‘By binding oneself one
assumes the risk of future changes in circumstances in light
of which one’s bargain may prove to have been a bad one.’”
Id. (quoting United States v. Bownes, 405 F.3d 634, 636 (7th
Cir. 2005)). At the time of their pleas, the defendants in
Oliver “obtained substantial benefits in exchange for their
promises. The government dropped other robbery and
firearm charges and recommended favorable departures
from the Sentencing Guidelines.” Id. at 846. Likewise here,
Goodall cannot enjoy the fruits of his favorable plea
agreement and then later claim the deal is rotten.5
Lastly, we cannot turn a blind eye to the practical effect
of Goodall’s argument. If the “illegal sentence” exception is
as broadly construed as Goodall urges, a defendant could try
5 Two other circuits have agreed to the general principle that a
defendant cannot raise a constitutional challenge to a conviction if he
waived his right to appeal or collaterally attack it. United States v.
Barnes, 953 F.3d 383 (5th Cir. 2020), cert. denied, 141 S. Ct. 438 (2020);
United States v. Lloyd, 901 F.3d 111 (2d Cir. 2018).
18 UNITED STATES V. GOODALL
to nullify an otherwise valid appellate waiver by simply
alleging error in the conviction. This interpretation might
undo nearly all appellate waivers, past and present, yielding
“perverse consequences.” Id. And the government would
then become wary of offering plea agreements if the
defendant could evade his obligations so easily. Id. (“If a
defendant can make a seemingly beneficial plea agreement
and can then renege,” the government would instead charge
defendants “with all applicable crimes and see what sticks
after the appeal.” (internal quotation marks omitted)). The
benefits of plea bargaining—efficiency and finality—would
thus erode, as defendants seek to have their cake and eat it
too. See Blackledge v. Allison, 431 U.S. 63, 71 (1977).
That is precisely what Goodall seeks to do. The
government did not pursue many robbery and firearm
charges and made a lenient sentencing recommendation in
exchange for Goodall’s plea. If Goodall had been charged
with all possible crimes, Goodall’s “crime of violence”
argument would not even exist. And the government
dropped one § 924(c) count, which would have added
another 25-year mandatory sentence. Rather than accept the
benefit of his bargain, Goodall seeks to parlay the plea
agreement’s leniency into reversible error. We decline the
invitation
Outcome: We DISMISS Goodall’s appeal as barred by the
appellate waiver in his plea agreement
Plaintiff's Experts:
Defendant's Experts:
Comments: