United States v. Draper

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 9, 2020
• Docket: 20-3130
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 9, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3130 (D.C. No. 2:15-CR-20035-JWL-JPO-1) BRYCE D. DRAPER, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver in Bryce D. Draper’s plea agreement. We grant the government’s

motion and dismiss the appeal.

BACKGROUND

In 2016, Draper pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). His plea agreement included a broad appeal waiver,

which indicated he “knowingly and voluntarily waive[d] any right to appeal . . . any

* This panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. matter in connection with this prosecution, his conviction, or the components of the

sentence . . . , including the length and conditions of supervised release, as well as

any sentence imposed upon a revocation of supervised release.” Mot. to Enforce

attach. B at 6. The district court sentenced him to 30 months’ imprisonment,

followed by 3 years’ supervised release. In May 2017, Draper was released from

prison based on time served and began his term of supervised release.

In 2018, the district court determined that Draper violated several conditions

of his supervised release. The court revoked his supervised release and sentenced

him to 18 months’ imprisonment, followed by 1 year of supervised release. Draper

appealed, and we affirmed. United States v. Draper, 768 F. App’x 828, 830

(10th Cir. 2019). In 2020, after Draper completed his additional imprisonment, the

district court found that he again violated conditions of his supervised release. The

court revoked his supervised release and sentenced him to 21 months’ imprisonment,

with no additional supervised release. Draper appeals both his revocation and the

sentence imposed.

DISCUSSION

The government has moved to enforce the appeal waiver in Draper’s plea

agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam). Under Hahn, we consider “(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.” Id. at 1325. Draper, through counsel, challenges

2 only the first two factors, so we do not address the miscarriage-of-justice factor. See

United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that this

court need not address a Hahn factor that the defendant does not contest).

A. Scope of the Waiver

Draper first argues that his appeal from his second revocation of supervised

release does not fall within the scope of his appeal waiver. We disagree.

“When construing an appellate waiver, we apply well-established contract

principles and examine the plain language of the agreement.” United States v.

Taylor, 413 F.3d 1146, 1151 (10th Cir. 2005) (internal quotation marks omitted).

“[W]e strictly construe the scope of the appellate waiver and interpret any

ambiguities against the Government and in favor of a defendant’s appellate

rights.” Id. at 1151-52 (internal quotation marks, brackets, and ellipsis omitted).

“But we do not hesitate to hold a defendant to the terms of a lawful plea

agreement.” United States v. Sandoval, 477 F.3d 1204, 1206 (10th Cir. 2007)

(internal quotation marks omitted).

Draper contends his waiver does not reach the present appeal because

revocation of supervised release “is a separate post-conviction proceeding that

provides a separate right of appeal.” Resp. at 5 (internal quotation marks omitted).

But as we have recognized, “where a plea agreement includes more precise language

describing the rights waived by the defendant,” a waiver can extend beyond a direct

appeal from a conviction and can encompass post-conviction proceedings. United

States v. Lonjose, 663 F.3d 1292, 1300 n.9 (10th Cir. 2011).

3 Draper’s waiver included precise language and specified that he “waive[d] any

right to appeal . . . any matter in connection with this prosecution, his conviction, or

the components of the sentence . . . as well as any sentence imposed upon a

revocation of supervised release.” Mot. to Enforce attach. B at 6 (emphasis added).

We have recognized that a waiver with this exact language encompasses an appeal

from the revocation of supervised release. See United States v. Porter, 905 F.3d

1175, 1180 (10th Cir. 2018) (observing that we have enforced a waiver in an appeal

from the revocation of supervised release where the “waiver in [the] original plea

agreement” specified the defendant “‘waive[d] any right to appeal . . . the sentence to

be imposed herein, including the length and conditions of supervised release, as well

as any sentence imposed upon a revocation of supervised release’” (internal

quotation marks omitted)).1

By its plain terms and consistent with Lonjose and Porter, the appeal waiver in

Draper’s plea agreement covers the appeal of a sentence following revocation of

supervised release. Draper argues, however, that his second revocation of supervised

release is too attenuated from his original judgment and the plea agreement

containing the waiver. See Resp. at 5-7 (noting “[t]he July 2020 judgment is not the

revocation of the supervised release imposed with the sentence for the 2016

conviction,” and contending “the appeal waiver from the December 2016 agreement

1 We declined to enforce the waiver in Porter because the waiver did not include “specific language” to bar an appeal from the revocation of supervised release and the parties could have “include[d] sentences upon revocations within the scope of the waiver” if they had so desired. 905 F.3d at 1180. 4 does not cover this third-round sentencing proceeding”). But he cites no authority to

support this proposition, and we are aware of none.

Draper plainly waived his right to appeal “any sentence imposed upon a

revocation of supervised release,” Mot. to Enforce attach. B at 6, not merely, as he

alleges, the initial “imposition of supervised release” and “the revocation of that

supervised release,” Resp. at 7 (emphasis added). Accordingly, we conclude that

Draper’s appeal from his second revocation of supervised release falls within the

scope of his appeal waiver.

B. Knowing and Voluntary Waiver

Draper also argues he did not knowingly and voluntarily waive his appeal

rights. We disagree.

For this Hahn factor, we look to the language of the plea agreement and the

Federal Rule of Criminal Procedure 11 plea colloquy to assess whether a waiver of

appellate rights was knowing and voluntary. See United States v. Rollings, 751 F.3d

1183, 1188 (10th Cir. 2014). “[E]ither the express language of the plea agreement, if

sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper

Rule 11 colloquy could be enough to conclude the waiver was knowing and

voluntary. But the synergistic effect of both will often be conclusive.” United States

v. Tanner, 721 F.3d 1231, 1234 (10th Cir. 2013) (per curiam).

The plea agreement, which Draper signed, explicitly states that he “knowingly

and voluntarily waive[d] any right to appeal . . . any sentence imposed upon a

revocation of supervised release.” Mot. to Enforce attach. B at 6. At the change-of-

5 plea hearing, the prosecutor read verbatim that passage from the agreement, id.

attach. A at 15, and Draper and his counsel confirmed that was their “understanding

of the plea agreement,” id. at 16. During the Rule 11 colloquy, Draper acknowledged

that he had “gone over” the appeal waiver with his attorney and that he wanted the

court to approve the waiver “as part of [his] plea agreement.” Id. at 18. He also

acknowledged he “could be imprisoned for an additional term of imprisonment” if he

“violate[d] the conditions of [his] supervised release, and it’s revoked or taken away

from [him].” Id. at 9.2 Finally, Draper indicated he understood that, subject to

exceptions stated in the waiver, he was “giving up any right [he] might have to

appeal anything having to do with [his] case.” Id. at 18 (emphasis added).

Draper contends that if, as we concluded above, his appeal falls within the

scope of his waiver, “[n]othing in the plea colloquy suggests he knew he might be

waiving that scope of appeals.” Resp. at 7. He alleges that “[a]t most[,] the colloquy

shows he was aware that he could be sentenced to supervised release[] and . . . was

waiving the right to appeal the terms of that supervised release.” Id. (emphasis

added). But the waiver, as stated in the plea agreement and confirmed during the

colloquy, is not so limited. Instead, it clearly indicates Draper knowingly and

voluntarily waived his right to appeal, among other things, “any sentence imposed

upon a revocation of supervised release.” Mot. to Enforce attach. B at 6 (emphasis

2 At sentencing, Draper, through counsel, “concur[red] with [the prosecutor’s] request for the three years of supervised release.” Mot. to Enforce attach. C at 15. 6 added). We are not persuaded that his waiver as to “the future chain of supervised

release and revocations” was “inadvertent[].” Resp. at 7.3

Accordingly, we conclude that Draper has failed to carry his burden of

demonstrating that he did not knowingly and voluntarily waive his appeal rights.

CONCLUSION

Draper’s appeal falls within the scope of his appeal waiver, and he knowingly

and voluntarily waived his appellate rights. We therefore grant the government’s

motion to enforce Draper’s appeal waiver and dismiss this appeal.

Entered for the Court Per Curiam

3 To the extent Draper suggests his waiver was not knowing and voluntary because it subjected him to an unreviewable endless cycle of supervised release and revocations, we note that the “future chain” he describes, Resp. at 7, was at all times finite and governed by statute. See United States v. Hernandez, 655 F.3d 1193, 1198 (10th Cir. 2011) (noting that 18 U.S.C. § 3583(h) “forecloses the possibility of endless cycles of prison and supervised release” and that even when a defendant has had multiple revocations of supervised release, the amount of supervised release a district court can impose in connection with any revocation is limited by § 3583(h) to “the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release” (emphasis omitted)); see also United States v. Collins, 859 F.3d 1207, 1210 (10th Cir. 2017) (stating “as to not only the first but also second and subsequent revocations, § 3583(e)(3) imposes a statutory maximum prison term based on the original criminal offense for which the defendant was convicted”). 7