Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5075 (D.C. No. 4:23-CR-00064-JDR-1) JESSE WAYNE CAUGHRON, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, KELLY, and MORITZ, Circuit Judges. _________________________________
Pursuant to a plea agreement containing an appellate waiver, Jesse Wayne
Caughron pleaded guilty to witness tampering, in violation of 18 U.S.C.
§ 1512(b)(1), and assault of an intimate/dating partner by strangling, suffocating, and
attempting to strangle and suffocate in Indian country, in violation of 18 U.S.C.
§§ 113(a)(8), 1151, and 1153. The district court sentenced him to 144 months in
prison. Mr. Caughron appealed, and the government now moves to enforce the
appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 2
(en banc) (per curiam). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the
motion and dismiss the appeal.
DISCUSSION
The government’s motion to enforce the appeal waiver requires us to
determine: “(1) whether the disputed appeal falls within the scope of the waiver of
appellate rights; (2) whether the defendant knowingly and voluntarily waived his
appellate rights; and (3) whether enforcing the waiver would result in a miscarriage
of justice.” Hahn, 359 F.3d at 1325.
Mr. Caughron’s argument against enforcement of his appeal waiver implicates
Hahn’s first two elements: he contends that his appeal waiver was not knowing and
voluntary because the Federal Rule of Criminal Procedure 11 plea colloquy “created
ambiguity regarding the scope of the appeal waiver.” Resp. at 3. We do not consider
the miscarriage-of-justice element because he does not challenge it. See United
States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (stating that the court “need
not address” an uncontested Hahn element).
Mr. Caughron has the burden to prove that his waiver was not knowing and
voluntary. Hahn, 359 F.3d at 1329. To determine whether he knowingly and
voluntarily waived his appellate rights, we examine the plea agreement’s language
and the adequacy of the Rule 11 plea colloquy. Id. at 1325.
His plea agreement indicates that he knowingly and voluntarily accepted the
appeal waiver. It provides:
[T]he defendant knowingly and voluntarily agrees to the following terms:
2 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 3
a. The defendant waives rights . . . to directly appeal the conviction and sentence, . . . except that the defendant reserves the right to appeal from a sentence that exceeds the statutory maximum;
b. The defendant expressly acknowledges and agrees that the government reserves all rights to appeal the sentence;
c. The defendant waives the right to appeal from the district court’s denial of any post-conviction motion to reduce the term of supervised release or probation . . . ; and
d. The defendant waives the right to collaterally attack the conviction and sentence under 28 U.S.C. §§ 2241, 2255, or any other extraordinary writ, except for claims of ineffective assistance of counsel.
Mot. to Enforce, Attach. 1 at 3.
And during the Rule 11 colloquy, the court had the following exchange with
Mr. Caughron regarding his appeal waiver:
THE COURT: All right. If you went to trial and were convicted, you would have a right to appeal your conviction. You would have the right to have an attorney help you prepare the appeal. If you plead guilty, you are generally giving up your rights to appeal and to file a later lawsuit challenging your conviction or sentence. There may be only limited rights to the appeal if your plea was unlawful or involuntary or if your sentence was not authorized by law. The plea agreement in this case contains a provision which you agree not to collaterally attack the sentence. That means you are agreeing not to petition the court which imposed the sentence to vacate, set aside or correct the sentence. Do you understand that you are giving up these rights? THE DEFENDANT: Yes. THE COURT: Alright. Sir, have you had enough time to fully confer with your attorney? THE DEFENDANT: Yes.
Id., Attach. 3 at 11–12.
3 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 4
Relying on United States v. Wilken, 498 F.3d 1160 (10th Cir. 2007),
Mr. Caughron argues the plea colloquy introduced ambiguity that precludes our
finding that his appeal waiver was knowing and voluntary. In Wilken, we concluded
an appeal waiver was involuntary where the plea agreement enumerated a broad
appellate waiver but “the court’s statements during the plea colloquy describe[d] a
much narrower waiver.” Id. at 1168–69.
There, the plea agreement contained two exceptions to the appeal waiver:
“if the sentence is imposed in violation of law or, in light of the factors listed in
18 U.S.C. § 3553(a), the sentence is unreasonable.” Id. at 1164 (internal quotation
marks omitted). During the plea colloquy, however, the district court described those
exceptions as follows: “unless a sentence is imposed above the statutory maximum,
. . . or if it’s in violation of the factors listed in the statute, you won’t have a right of
appeal.” Id. (emphasis removed) (internal quotation marks omitted). This court held
that the district court’s summary could be “understood . . . as broadening [the
defendant’s] right of appeal under the waiver,” and the defendant could reasonably
rely on that. Id. at 1168. In turn, this language created an “ambiguity,” and,
consequently, we could not “conclude that [the defendant’s] waiver . . . was knowing
and voluntary.” Id. at 1168–69.
Mr. Caughron says his case is like Wilken because his plea agreement
contained both a direct-appeal waiver and a collateral-attack waiver, but the plea
colloquy “included collateral proceedings only.” Resp. at 3. We disagree.
4 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 5
Although the district court did not use the term “direct appeal,” it began by
telling Mr. Caughron: “If you went to trial and were convicted, you would have a
right to appeal your conviction. You would have the right to have an attorney help
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Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5075 (D.C. No. 4:23-CR-00064-JDR-1) JESSE WAYNE CAUGHRON, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, KELLY, and MORITZ, Circuit Judges. _________________________________
Pursuant to a plea agreement containing an appellate waiver, Jesse Wayne
Caughron pleaded guilty to witness tampering, in violation of 18 U.S.C.
§ 1512(b)(1), and assault of an intimate/dating partner by strangling, suffocating, and
attempting to strangle and suffocate in Indian country, in violation of 18 U.S.C.
§§ 113(a)(8), 1151, and 1153. The district court sentenced him to 144 months in
prison. Mr. Caughron appealed, and the government now moves to enforce the
appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 2
(en banc) (per curiam). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the
motion and dismiss the appeal.
DISCUSSION
The government’s motion to enforce the appeal waiver requires us to
determine: “(1) whether the disputed appeal falls within the scope of the waiver of
appellate rights; (2) whether the defendant knowingly and voluntarily waived his
appellate rights; and (3) whether enforcing the waiver would result in a miscarriage
of justice.” Hahn, 359 F.3d at 1325.
Mr. Caughron’s argument against enforcement of his appeal waiver implicates
Hahn’s first two elements: he contends that his appeal waiver was not knowing and
voluntary because the Federal Rule of Criminal Procedure 11 plea colloquy “created
ambiguity regarding the scope of the appeal waiver.” Resp. at 3. We do not consider
the miscarriage-of-justice element because he does not challenge it. See United
States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (stating that the court “need
not address” an uncontested Hahn element).
Mr. Caughron has the burden to prove that his waiver was not knowing and
voluntary. Hahn, 359 F.3d at 1329. To determine whether he knowingly and
voluntarily waived his appellate rights, we examine the plea agreement’s language
and the adequacy of the Rule 11 plea colloquy. Id. at 1325.
His plea agreement indicates that he knowingly and voluntarily accepted the
appeal waiver. It provides:
[T]he defendant knowingly and voluntarily agrees to the following terms:
2 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 3
a. The defendant waives rights . . . to directly appeal the conviction and sentence, . . . except that the defendant reserves the right to appeal from a sentence that exceeds the statutory maximum;
b. The defendant expressly acknowledges and agrees that the government reserves all rights to appeal the sentence;
c. The defendant waives the right to appeal from the district court’s denial of any post-conviction motion to reduce the term of supervised release or probation . . . ; and
d. The defendant waives the right to collaterally attack the conviction and sentence under 28 U.S.C. §§ 2241, 2255, or any other extraordinary writ, except for claims of ineffective assistance of counsel.
Mot. to Enforce, Attach. 1 at 3.
And during the Rule 11 colloquy, the court had the following exchange with
Mr. Caughron regarding his appeal waiver:
THE COURT: All right. If you went to trial and were convicted, you would have a right to appeal your conviction. You would have the right to have an attorney help you prepare the appeal. If you plead guilty, you are generally giving up your rights to appeal and to file a later lawsuit challenging your conviction or sentence. There may be only limited rights to the appeal if your plea was unlawful or involuntary or if your sentence was not authorized by law. The plea agreement in this case contains a provision which you agree not to collaterally attack the sentence. That means you are agreeing not to petition the court which imposed the sentence to vacate, set aside or correct the sentence. Do you understand that you are giving up these rights? THE DEFENDANT: Yes. THE COURT: Alright. Sir, have you had enough time to fully confer with your attorney? THE DEFENDANT: Yes.
Id., Attach. 3 at 11–12.
3 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 4
Relying on United States v. Wilken, 498 F.3d 1160 (10th Cir. 2007),
Mr. Caughron argues the plea colloquy introduced ambiguity that precludes our
finding that his appeal waiver was knowing and voluntary. In Wilken, we concluded
an appeal waiver was involuntary where the plea agreement enumerated a broad
appellate waiver but “the court’s statements during the plea colloquy describe[d] a
much narrower waiver.” Id. at 1168–69.
There, the plea agreement contained two exceptions to the appeal waiver:
“if the sentence is imposed in violation of law or, in light of the factors listed in
18 U.S.C. § 3553(a), the sentence is unreasonable.” Id. at 1164 (internal quotation
marks omitted). During the plea colloquy, however, the district court described those
exceptions as follows: “unless a sentence is imposed above the statutory maximum,
. . . or if it’s in violation of the factors listed in the statute, you won’t have a right of
appeal.” Id. (emphasis removed) (internal quotation marks omitted). This court held
that the district court’s summary could be “understood . . . as broadening [the
defendant’s] right of appeal under the waiver,” and the defendant could reasonably
rely on that. Id. at 1168. In turn, this language created an “ambiguity,” and,
consequently, we could not “conclude that [the defendant’s] waiver . . . was knowing
and voluntary.” Id. at 1168–69.
Mr. Caughron says his case is like Wilken because his plea agreement
contained both a direct-appeal waiver and a collateral-attack waiver, but the plea
colloquy “included collateral proceedings only.” Resp. at 3. We disagree.
4 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 5
Although the district court did not use the term “direct appeal,” it began by
telling Mr. Caughron: “If you went to trial and were convicted, you would have a
right to appeal your conviction. You would have the right to have an attorney help
you prepare the appeal.” Mot. to Enforce, Attach. 3 at 11–12. The court then
adequately described the direct-appeal waiver by stating, “you are generally giving
up your rights to appeal and to file a later lawsuit challenging your conviction or
sentence. There may be only limited rights to the appeal if your plea was unlawful or
involuntary or if your sentence was not authorized by law.” Id. at 12. Moreover,
unlike in Wilken, the court’s statements during the plea colloquy here did not
“describe a much narrower waiver,” 498 F.3d at 1168, than the waiver set forth in
Mr. Caughron’s plea agreement. The Rule 11 colloquy shows that the court ensured
that he knowingly and voluntarily accepted the appeal waiver. Thus, Mr. Caughron
has failed to meet his burden to show that his appeal waiver was not knowing and
voluntary.
Having determined Mr. Caughron has not shown that the plea colloquy created
ambiguity regarding the scope of the appeal waiver, we also conclude his appeal falls
within the waiver’s scope. He waived the right to appeal from any sentence that did
not exceed the statutory maximum, and neither of his sentences do so.
The district court sentenced Mr. Caughron to concurrent sentences totaling
144 months (twelve years) in prison. The maximum sentence for his witness
tampering conviction was twenty years, see 18 U.S.C. § 1512(b), and he received
5 Appellate Case: 24-5075 Document: 25-1 Date Filed: 10/11/2024 Page: 6
144 months for that offense. The assault conviction had a ten-year maximum, see
18 U.S.C. § 113(a)(8), and he received 120 months (ten years) for that offense.
CONCLUSION
We grant the government’s motion to enforce the appeal waiver and dismiss
the appeal.
Entered for the Court
Per Curiam