United States v. Hollis

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 30, 2023
• Docket: 22-6208
• Status: Unpublished

Opinion

Appellate Case: 22-6208 Document: 010110835357 Date Filed: 03/30/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 30, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-6208 (D.C. No. 5:20-CR-197-G-1) JUAN JABARI HOLLIS, (W.D. Okla.) a/k/a Juan Jabari Shinault,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________

Juan Jabari Hollis pleaded guilty to witness tampering and being a felon in

possession of a firearm. The district court sentenced him to a 120-month prison term

on the felon-in-possession charge, concurrent with a 150-month prison term (the high

end of the guidelines range) on the witness-tampering charge. He has appealed from

that sentence, but his plea agreement contains an appeal waiver. The government

now moves to enforce that waiver under United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc).

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-6208 Document: 010110835357 Date Filed: 03/30/2023 Page: 2

When deciding a motion to enforce an appeal waiver, we normally ask:

“(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. But we need not address any Hahn factor the defendant does not contest.

See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). Hollis concedes

the first two factors, so we will proceed directly to the miscarriage-of-justice factor.

In this context, a miscarriage of justice occurs “[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.” Hahn, 359 F.3d at 1327 (bracketed numerals in original;

internal quotation marks omitted). Hollis argues that the fourth possibility

(“otherwise unlawful”) applies to him. He says the district court incorrectly

overruled some of his sentencing objections, and, as a result, miscalculated the

offense level, leading to an erroneously inflated guidelines range.

“[Hollis] misunderstands the miscarriage of justice exception to enforcement

of a waiver of appellate rights. This exception looks to whether the waiver is

otherwise unlawful, not to whether another aspect of the proceeding may have

involved legal error.” United States v. Smith, 500 F.3d 1206, 1212–13 (10th Cir.

2007) (internal quotation marks and citation omitted). Further, Hollis expressly

waived the right to appeal “the manner in which the sentence is determined.” Mot. to

2 Appellate Case: 22-6208 Document: 010110835357 Date Filed: 03/30/2023 Page: 3

Enforce Appellate Waiver, Attach. 1 at 9, ¶ 15(b). “To allow alleged errors in

computing a defendant’s sentence to render a waiver unlawful would nullify the

waiver based on the very sort of claim it was intended to waive.” Smith, 500 F.3d

at 1213.

For these reasons, we reject Hollis’s miscarriage-of-justice challenge, grant the

government’s motion to enforce the appeal waiver, and dismiss this appeal.

Entered for the Court Per Curiam