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United States v. Lewis

United States Court of Appeals, Eleventh Circuit

June 26, 2019

DARIN LEWIS, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 1:16-cr-00571-CEM-CSC-2

          Before ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER, [*] Circuit Judges.


         Before pleading guilty to one count of conspiracy to commit wire fraud, Darin Lewis entered into a plea bargain in which he waived his right to appeal his sentence except under certain limited circumstances, none of which applies. Despite the waiver in his plea bargain, Lewis has appealed his thirty-month sentence, contending that it is substantively unreasonable. His attempt to sidestep his appeal waiver is based on the government having joined in his objection to the district court that the sentence is unreasonable, which he argues amounts to a waiver by the government of its right to enforce his appeal waiver. The argument is a little clever, but not at all convincing.

         I. Facts and Procedural History

         In June 2014, the Dale County Water Authority (County Water), which provides water to businesses and residences in and around Ozark, Alabama, received a $1.6 million government loan to replace some water lines in the county. County Water hired Roberson Excavation, a company owned by Billy Ray Roberson, to be the general contractor on the project.

         The pipe replacement work was scheduled to begin on July 9, 2014, and the contract required Roberson Excavation to complete the work by November 5, 2014. If it failed to meet the deadline, the company would incur a $500-per-day penalty. After installing the new water lines, Roberson Excavation was also responsible for: (1) pressure testing the lines to ensure that they did not leak; (2) flushing the lines to clear sediment or debris and treating them with disinfectant; and (3) drawing water samples and taking them to a licensed lab for bacteriological testing. Roberson Excavation failed to install the new water lines by November 5, 2014, and soon thereafter County Water started assessing the $500-per-day penalty against the company.

         On January 22, 2015, Billy Ray Roberson hired Darin Lewis to work on the project. He had experience in excavation and boring. Lewis' initial assignment was to oversee the boring of a water line under a highway in order to link two segments of newly installed lines. After Lewis did that work, Roberson asked him to stay on the water line project as a site supervisor.

         At some point, Lewis and Roberson agreed that they would skip some of the testing that the contract required and falsify documents to indicate that it had been done. During the pressure testing that was done, Lewis manipulated the flow of water through the lines to hide the leaks that he knew or reasonably believed existed. Roberson instructed Lewis to give the falsified test results to the project engineer, who worked for a separate company that County Water had hired for the project, and Lewis did so.

         Lewis also followed Roberson's instruction to fake the bacteriological tests. He did that by collecting water samples from a fire hydrant that was connected to lines he knew were bacteria-free. At Roberson's direction, Lewis falsely recorded the location where he had obtained those samples and then submitted the samples to a lab. The lab reported that the samples did not contain bacteria, and Roberson Excavation emailed the falsified bacteriological testing report to the project engineer and requested that the company be paid for its work on the project. The request for payment falsely stated that all pressure and bacteriological testing had been completed according to the applicable standards.

         A grand jury indicted Roberson Excavation, Roberson, and Lewis for one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343, 371. Lewis pleaded guilty under a written plea agreement. In that agreement, he admitted the facts of the conspiracy and agreed to waive his right to appeal his sentence or to collaterally attack his conviction or sentence in any post-conviction proceeding. The appeal waiver part of the plea agreement includes an underlined heading in bold, capital letters that reads: "DEFENDANT'S WAIVER OF APPEAL AND COLLATERAL ATTACK." The paragraph under that heading states:

Understanding that 18 U.S.C. § 3742 provides for appeal by a defendant of the sentence under certain circumstances, the defendant expressly waives any and all rights conferred by 18 U.S.C. § 3742 to appeal the sentence. The defendant also waives the right to attack his conviction and sentence in any post-conviction proceeding, including proceedings pursuant to 28 U.S.C. § 2255. This waiver does not include the right to appeal on the grounds of ineffective assistance of counsel or prosecutorial misconduct, or to collaterally attack the sentence on those grounds.

         It is undisputed that the only exceptions to the appeal waiver (ineffective assistance of counsel and prosecutorial misconduct) do not apply here.

         The plea agreement also states that Lewis "understands and acknowledges that, although the parties are permitted to make recommendations and present arguments to the Court, the sentence and the United States Sentencing Guidelines, if any, applicable to [Lewis'] case will be determined solely by the Court, with the assistance of Probation." Lewis agreed that he "understands that the Government can only make a recommendation as to the appropriate sentence, which is not binding on the Court." For its part, the government agreed that it would ...

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