United States v. Haas

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 27, 2022
• Docket: 22-5054
• Status: Unpublished

Opinion

Appellate Case: 22-5054 Document: 010110759431 Date Filed: 10/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 27, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-5054 (D.C. No. 4:21-CR-00160-CVE-1) JOSEPH KEEGAN HAAS, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EID, and CARSON, Circuit Judges. _________________________________

Joseph Keegan Haas pleaded guilty to one count of possession of a firearm and

ammunition while subject to a protective order, in violation of 18 U.S.C.

§§ 922(g)(8) and 924(a)(2) (Count 1), and one count of assault by striking, beating,

and wounding, in violation of 18 U.S.C. §§ 1151, 1152, and 113(a)(4) (Count 2).

Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties stipulated

that Mr. Haas should be sentenced in the range of 24 to 96 months of imprisonment.

The district court sentenced Mr. Haas in the stipulated range: 36 months on Count 1

and 12 months on Count 2, to run concurrently. In his plea agreement, Mr. Haas

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-5054 Document: 010110759431 Date Filed: 10/27/2022 Page: 2

waived his right to appeal his conviction and sentence, unless his sentence exceeded

the statutory maximum. Although his sentence did not exceed the statutory

maximum for either charge, he filed an appeal. The government has moved to

enforce the appeal waiver in the plea agreement under United States v. Hahn,

359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). We grant the government’s motion

and dismiss the appeal.

I. Discussion

Under Hahn, we consider the following three factors when deciding a motion

to enforce an appeal waiver in a plea agreement: “(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. Mr. Haas argues his

appeal does not fall within the scope of the waiver and enforcing the waiver would

result in a miscarriage of justice. He does not assert his waiver was not knowing and

voluntary, so we need not address that factor. See United States v. Porter, 405 F.3d

1136, 1143 (10th Cir. 2005).

A. Scope of the Waiver

In his response to the motion to enforce, Mr. Haas contends his appeal is not

subject to the appeal waiver “because his principal claim on appeal concerns the

facial constitutionality of 18 U.S.C. § 922(g)(8) following the Supreme Court’s

decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).”

Resp. at 2. He maintains that “[t]he criminal statute under which [he] was convicted,

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and which was the sole basis for his three-year prison sentence, is fundamentally

unconstitutional in violation of the Second Amendment.” Id. Because the statute of

conviction is unconstitutional, he argues, any sentence imposed for a conviction

under that statute “exceeds the statutory maximum[].” Id. And because he reserved

the right to appeal a sentence that exceeds the statutory maximum, he asserts that his

appeal is outside the scope of the waiver.

The problem is that Mr. Haas’s argument, though phrased in terms of an

unlawful sentence, is really that his conviction is unlawful. But his appeal waiver

bars any appeal of his conviction, and there are no exceptions to that portion of the

appeal waiver. See R., vol. 1 at 49 (”The defendant waives the right to directly

appeal the conviction . . . pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C.

§ 3742(a).”). Mr. Haas’s challenge to the constitutionality of § 922(g)(8), even if

couched as a derivative challenge to his sentence, is a challenge to his conviction that

is covered by the scope of his appeal waiver.

Section 922(g)(8) has not been deemed unconstitutional. 1 Mr. Haas thus

pleaded guilty to violating a valid statute, and his three-year sentence is far below the

1 Bruen did not address the constitutionality of § 922(g)(8), and no court has found § 922(g)(8) unconstitutional since Bruen. In Bruen, the Court held “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home” and it concluded that New York’s public-carry licensing regime was unconstitutional because the State would only issue licenses “when an applicant demonstrate[d] a special need for self-defense.” 142 S. Ct. at 2122. The Court also set forth a new test for assessing the constitutionality of a statute under the Second Amendment. See id. at 2125-26, 2129-30. In his response, Mr. Haas cites to an unpublished district court case, United States v. Kays, No. CR-22-40-D, 2022 WL 3718519 (W.D. Okla. Aug. 29, 3 Appellate Case: 22-5054 Document: 010110759431 Date Filed: 10/27/2022 Page: 4

ten-year statutory maximum. His appeal therefore does not fall within the exception

in his appeal waiver for a sentence that exceeds the statutory maximum.

B. Miscarriage of Justice

In Hahn, we held that enforcement of an appeal waiver does not result in a

miscarriage of justice except: “[1] where the district court relied on an impermissible

factor such as race, [2] where ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds

the statutory maximum, or [4] where the waiver is otherwise unlawful.” 359 F.3d at

1327 (internal quotation marks omitted).

Mr. Haas contends that enforcing his appeal waiver would result in a

miscarriage of justice because his sentence exceeds the statutory maximum and his

waiver is otherwise unlawful. As we discussed above, Mr. Haas’s sentence does not

exceed the statutory maximum. He also has not demonstrated that his waiver is

otherwise unlawful.

Although he “recognizes that the ‘otherwise unlawful’ exception focuses on

‘whether the waiver is otherwise unlawful . . . not [on] whether another aspect of the

proceeding may have involved legal error,’” Resp. at 5 (quoting United States v.

Smith, 500 F.3d 1206, 1213 (10th Cir. 2007)), Mr. Haas contends that “the facial

2022), to suggest that § 922(g)(8) is no longer constitutional after the Supreme Court abrogated the test this court had previously used for determining the constitutionality of that statute. But in Kays, the district court applied Bruen’s new test and rejected the movant’s argument that § 922(g)(8) violates the Second Amendment. See 2022 WL 3718519, at *3-4. 4 Appellate Case: 22-5054 Document: 010110759431 Date Filed: 10/27/2022 Page: 5

unconstitutionality of section 922(g)(8) is that category of defect,” id. at 6. But it is

not clear how his proposed appellate argument challenging the facial constitutionality

of § 922(g)(8) demonstrates that the appeal waiver in his plea agreement is otherwise

unlawful.

He asserts that “[u]nder the Second Amendment, as the Supreme Court has

now clarified, the government had no authority to seek a plea agreement on these

terms, nor the district court to accept it.” Id. This argument fails, however, because

it presumes the statute was unconstitutional when the parties entered into the plea

agreement. But Bruen was not issued until six months after the parties entered into

the plea agreement, and it did not address the constitutionality of § 922(g)(8) in any

event. Mr. Haas’s belief that § 922(g)(8) is now unconstitutional does not make it so

nor does it mean it was invalid when he pleaded guilty. Because § 922(g)(8) is a

valid statute, it did not present an impediment to the parties entering into the plea

agreement or to Mr. Haas waiving his appellate rights.

Mr. Haas next suggests that entering a guilty plea does not waive the right to

bring a facial challenge to the constitutionality of a statute, citing two unpublished

cases. See id. at 6-7 (citing United States v. Rickett, 535 F. App’x 668

(10th Cir. 2013), and United States v. Rangel-Hernandez, 597 F. App’x 553

(10th Cir. 2015)). But neither of those cases held that a facial constitutional

challenge survives a guilty plea. See Rickett, 535 F. App’x at 671, 672 n.3

(explaining this court has “not yet squarely addressed whether a facial challenge to

the constitutionality of a statute survives a guilty plea,” and declining to decide the

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issue); Rangel-Hernandez, 597 F. App’x at 554 (same). And neither of those cases

involved a situation where the government was attempting to enforce an appeal

waiver in a plea agreement. In Rangel-Hernandez, the defendant had not entered into

a plea agreement—he had entered an unconditional guilty plea, 597 F. App’x at 554,

so there was no appeal waiver to enforce. In Rickett, we explained that the defendant

would normally be bound by the terms of the appellate waiver in his plea agreement

and “would not be free to present his [constitutional] claim to us.” 535 F. App’x at

672. But in that case, the government explicitly waived the right to enforce the

appeal waiver. Id. Mr. Haas has not cited any authority—and we are not aware of

any—supporting his argument that a facial constitutional challenge to a statute of

conviction renders the appeal waiver in a plea agreement otherwise unlawful under

the miscarriage-of-justice exception.

At the end of the day, Mr. Haas is simply trying to avoid the enforcement of

his appeal waiver because there has been a subsequent change in the law that he

believes is favorable to him. But “Supreme Court precedent is quite explicit that as

part of a plea agreement, criminal defendants may waive both rights in existence and

those that result from unanticipated later judicial determinations.” Porter, 405 F.3d

at 1144. And we have explained:

The essence of plea agreements . . . is that they represent a bargained-for understanding between the government and criminal defendants in which each side foregoes certain rights and assumes certain risks in exchange for a degree of certainty as to the outcome of criminal matters. One such risk is a favorable change in the law. To allow defendants or the government to routinely invalidate plea agreements based on subsequent changes in the law would decrease the prospects of reaching an agreement in the first

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place, an undesirable outcome given the importance of plea bargaining to the criminal justice system. Id. at 1145.

II. Conclusion

Mr. Haas has failed to show that his appeal is outside the scope of his appeal

waiver or that enforcing his appeal waiver would result in a miscarriage of justice.

Accordingly, we grant the government’s motion to enforce the appeal waiver and dismiss

this appeal.

Entered for the Court Per Curiam