United States v. Ivory

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 27, 2022
• Docket: 21-3028
• Status: Unpublished

Opinion

Appellate Case: 21-3028 Document: 010110701665 Date Filed: 06/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

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

Plaintiff - Appellee, No. 21-3028 v. (D.C. No. 2:11-CR-20108-JWL-2) (D. Kan.) JOMAR IVORY,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. _________________________________

This appeal arises from the district court’s imposition of a special condition of

supervised release on Jomar Ivory (“Defendant”). The challenged condition mandates

Defendant take all mental health medications prescribed to him by his treating

physician. Defendant’s opening brief raises only one issue: did the district court err

when imposing this special condition? In response, the Government seeks to enforce

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-3028 Document: 010110701665 Date Filed: 06/27/2022 Page: 2

an appellate waiver contained in Defendant’s initial plea agreement. 1 Exercising

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we agree with the

Government that Defendant’s appellate waiver should be enforced and dismiss this

case.

I.

In April 2012, Defendant pleaded guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 94

months’ imprisonment followed by a 3-year term of supervised release. Defendant’s

plea agreement contained an appellate waiver wherein he waived the right “to appeal

or collaterally attack any matter in connection with this prosecution, the defendant’s

conviction, or the components of 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.” ROA I at 26 (emphasis added).

Defendant was released from prison in May 2019. Six months later, the U.S.

Probation Office filed a petition alleging Defendant violated multiple conditions of his

supervised release. At Defendant’s first revocation hearing in May 2020, his probation

officer requested the court impose a 120-day stay at a residential reentry center

(“RRC”) as well as “mental health conditions.” The district court imposed the 120-

1 The Government previously moved to enforce this appellate waiver. We denied this motion without prejudice and allowed the Government to raise the issue, here, in its merits brief. 2 Appellate Case: 21-3028 Document: 010110701665 Date Filed: 06/27/2022 Page: 3

day RRC condition and mandated Defendant participate in a “mental health treatment

program.”

Based on Defendant’s “erratic behavior” upon his arrival at the RRC, Probation

once again petitioned the district court for a hearing to revoke Defendant’s supervised

release. During this hearing in July 2020, the district court heard testimony from Seth

Wescott, a licensed clinical psychologist. 2 Mr. Wescott stated, based on his analysis,

that Defendant had schizophrenia and antisocial personality disorder. He

recommended that Defendant receive outpatient mental health counseling. Based on

this testimony, the district court continued the final revocation hearing to allow

Defendant time to get treatment.

In October 2020, the court held another revocation of supervised release hearing.

The district court noted that since Defendant began receiving medication, he had no

further incidents in prison. The district court also stated its opinion on the importance

of Defendant continuing to take his prescribed medication. Accordingly, the district

court imposed another mandatory RRC term, and modified Defendant’s conditions of

supervised release to include, among other things, that he “take all mental health

medications that are prescribed by [his] treating physician.” ROA I at 114.

Probation filed a third revocation petition in December 2020 alleging the RRC

discharged Defendant for threatening staff. Based on these allegations, the district

2 At times the Record refers to Seth Wescott as “Mr. Westcott.” In both of their briefs the parties refer to him as “Seth Wescott.” We presume this to be the correct spelling and consider the record’s discrepancy as a mere typographical error. ROA I at 64. 3 Appellate Case: 21-3028 Document: 010110701665 Date Filed: 06/27/2022 Page: 4

court revoked Defendant’s supervised release and sentenced him to 12 months’

imprisonment. The district court also imposed a 2-year term of supervised release

which included the special condition that he take all mental health medications

prescribed to him.

II.

Defendant’s sole challenge on appeal is that the district court plainly erred in

imposing a psychiatric medication condition without making particularized findings of

fact. The Government argues that we should enforce the appellate waiver in

Defendant’s 2012 plea agreement and dismiss this appeal. We explained the

considerations taken when evaluating the enforceability of an appellate waiver in

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Under

Hahn, we must decide: “(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.

A.

We must first consider whether the special condition of supervised release

imposed upon Defendant, as part of his revocation of supervised release, falls within

the scope of the waiver of appellate rights. When determining a waiver’s scope, “we

will strictly construe appellate waivers and any ambiguities in these agreements will

be read against the Government and in favor of a defendant’s appellate rights.” Id.

(cleaned up). Additionally, we interpret a plea agreement as we would any contract

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and in light of what the defendant reasonably understood when he entered his plea. See

United States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011). Here, Defendant’s

appellate waiver states that “[t]he defendant knowingly and voluntarily waives any

right to appeal or collaterally attack any matter in connection with this prosecution,

the defendant’s conviction, or the components of 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. ROA I at 26 (emphasis added).

Defendant argues that this appellate waiver is unenforceable as it does not

specifically mention its applicability to conditions of supervised release imposed as a

part of Defendant’s revocation of supervised release. Defendant contends that the

appellate waiver treats the terms “sentence” and “conditions” as separate concepts.

According to his reading, the appellate waiver only prohibits him from appealing “any

sentence imposed” on revocation of supervised release—not the addition of new

conditions—because the first clause of the waiver specifically mentions "components

of the sentence” including “conditions” of supervised release, while the second clause

does not. We do not find this argument persuasive because we have previously held

that “[s]upervised-release conditions are part of the sentence” for purposes of

construing the scope of the appellate waiver. United States v. Sandoval, 477 F.3d 1204,

1207 (10th Cir. 2007).

Defendant attempts to strengthen this argument by arguing sentences serve a

punitive function while supervised release serves a wholly non-punitive function. He

bases this claim on the absence of § 3553(a)(2)(A) as a factor to be considered when

5 Appellate Case: 21-3028 Document: 010110701665 Date Filed: 06/27/2022 Page: 6

imposing a term of supervised release under 18 U.S.C. § 3583(c). This argument seems

persuasive at first glance given Defendant’s definition of “a ‘sentence’ as ‘the

punishment to be inflicted upon the convict.’” Appellant’s Reply Br. 5 (quoting

Sentence, Merriam-Webster, https://www.dictionary.com/browse/sentence). But we

do not agree that all aspects of a sentence serve punitive functions. After all, the courts

are mandated to consider all § 3553(a) factors when imposing sentences. Many of

these factors include wholly non-punitive considerations such as the need to provide

the defendant with educational training, medical care, or other correctional treatment.

18 U.S.C § 3553(a)(2)(D). Thus, to achieve the goals of § 3553(a), courts regularly

impose sentences with both punitive and non-punitive aspects. As such, we do not

agree with Defendant’s argument that conditions of supervised release cannot be part

of a sentence as they serve only non-punitive functions.

We do not find it persuasive that Defendant did not reasonably understand

conditions imposed upon revocation of supervised release would be covered by this

appellate waiver. Defendant agreed, after all, to “waive[] any right to appeal . . . any

matter in connection with this prosecution.” Therefore, when considering this plea

agreement in light of what Defendant reasonably understood when he entered it, we

are not persuaded that he reasonably understood conditions imposed upon revocation

of supervised release to not fall within the scope of this appellate waiver. Because

Defendant’s conditions of supervised release are part of the “sentence imposed upon

revocation of supervised release,” we conclude that this appeal falls squarely within

the appellate waiver’s scope.

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B.

Next, we consider whether the defendant knowingly and voluntarily waived his

appellate rights. Hahn, 359 F.3d at 1325. Defendant contends that because the district

court gave him conflicting information as to his right to appeal his revocation sentence,

he did not knowingly waive his right to appeal. Defendant bases this claim on the fact

that the district court informed him that he had the right to appeal this sentence, subject

to the provisions of 18 U.S.C. § 3742. ROA II at 86–87. But the district court’s

statements concerning the right to appeal under § 3742 do not render Defendant’s prior

decision to enter this appellate waiver unknowing. See United States v. Atterberry,

144 F.3d 1299, 1301 (10th Cir. 1998). “[S]tatements made by a judge during

sentencing concerning the right to appeal do not act to negate written waivers of that

right, because statements like those made by the court during [Defendant’s] sentencing

do not affect a defendant’s prior decision to plead guilty and waive appellate rights.”

Id.

Defendant also argues that he did not knowingly waive his right to appeal the

conditions of supervised release on revocation because a revocation of supervised

release creates a separate right of appeal. Appellant’s Reply Br. 9. But we directly

negated this argument in United States v. Draper, 836 F. App’x 711, 713 (10th Cir.

2020) (per curiam) (unpublished). In Draper, the defendant claimed that:

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.’ 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

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conviction and encompass post-conviction proceedings. United States v. Lonjose, 663 F.3d 1292, 1300 n.9 (10th Cir. 2011).

Id. Here, Defendant’s plea agreement contains precise language describing how

Defendant waived his right to appeal “any sentence imposed upon a revocation of

supervised release.” As such, we hold that Defendant knowingly and voluntarily

waived his appellate rights.

C.

Finally, we must decide whether enforcing this appellate waiver would result in

a miscarriage of justice. A miscarriage of justice only occurs: (1) if the district court

relied on an impermissible factor such as race, (2) where ineffective assistance of

counsel in connection with negotiation of the waiver renders the waiver invalid, (3)

where the sentence exceeds the statutory maximum, or (4) where the waiver is

otherwise unlawful. See Hahn, 359 F.3d at 1327. Defendant claims this waiver is

otherwise unlawful—the fourth situation—because it burdens the right to appeal a

future hypothetical proceeding. To satisfy the fourth factor, “the error must seriously

affect the fairness, integrity or public reputation of judicial proceedings.” Id. (cleaned

up). Defendant’s claim that this waiver is otherwise unlawful is only supported by his

own assertation that this appellate waiver is the only one of its kind in the United

States. He fails to cite any authority to support his assertion that enforcing this waiver

will seriously affect the fairness, integrity, or public reputation of judicial proceedings.

As such, we conclude that enforcement of this appellate waiver will not result in a

miscarriage of justice.

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* * *

Defendant’s appellate waiver is enforceable because the challenged conditions

imposed upon revocation fall within the scope of the appellate waiver, Defendant

entered into the agreement knowingly and voluntarily, and enforcement of this

appellate waiver will not result in a miscarriage of justice. We DISMISS this appeal.

Entered for the Court

Bobby R. Baldock Circuit Judge