FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 28, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6195 (D.C. No. 5:19-CR-00006-R-1) CHARLES LEONARD LAWSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, MORITZ, and CARSON, Circuit Judges. _________________________________
Charles Leonard Lawson has appealed from his sentence despite the appeal
waiver in his plea agreement. The government now moves to enforce that waiver
under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)
(per curiam). Lawson’s counsel responds that she is aware of no non-frivolous
argument for overcoming the waiver and she has moved to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). We gave Lawson an opportunity to file a pro
se response, which he did. For the reasons explained below, we will grant the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. government’s motion to enforce the appeal waiver, grant counsel’s motion to
withdraw, and dismiss this appeal.
In January 2019, a grand jury in the Western District of Oklahoma indicted
Lawson on various offenses related to firearms and controlled substances. Lawson
soon agreed to plead guilty to one count of being a felon in possession of a firearm in
exchange for dismissal of the other charges. He further agreed to waive his “right to
appeal [his] sentence as imposed by the Court, including . . . the manner in which the
sentence is determined.” Mot. to Enforce Appellate Waiver, Attach. 1 (“Plea
Agreement”) ¶ 15(b). But the appeal waiver contained two exceptions: (1) “the
applicability of the [Armed Career Criminal Act (ACCA)] enhancement should the
Court find the ACCA enhancement applies,” and (2) “the substantive reasonableness
of [his] sentence” if the district court imposed a sentence “above the advisory
Guidelines range determined by the Court to apply to Defendant’s case.” Id.
At the change-of-plea hearing, the district court conducted a thorough colloquy
with Lawson and found that he intelligently and voluntarily waived the rights he was
giving up through his plea agreement, including his right to appeal. The district court
therefore accepted the agreement.
As implied by the appeal waiver’s ACCA exception, the parties disputed
whether the ACCA’s career-offender enhancement applied. See 18 U.S.C.
§ 924(e)(1) (imposing a fifteen-year minimum sentence on persons convicted of
illegally possessing a firearm who have three previous convictions for “a violent
felony or a serious drug offense”). At sentencing, the district court ruled against
2 Lawson on that issue and sentenced him to the mandatory fifteen-year minimum.
Lawson then challenged that decision before this court. We held that one of the prior
convictions on which the district court relied did not count for career-offender
purposes, so we vacated and remanded for resentencing. See United States v.
Lawson, 827 F. App’x 886, 889 (10th Cir. 2020).
On remand, the district court found that Lawson’s advisory Guidelines range
was 110 to 120 months’ imprisonment and resentenced him to 120 months. Lawson
now appeals from that sentence.
Our first question when faced with a motion to enforce an appeal waiver is
“whether the disputed appeal falls within the scope of the waiver.” Hahn, 359 F.3d
at 1325. In his pro se response, Lawson argues that the district court overcounted his
prior convictions and therefore assessed too many criminal history points when
making its Guidelines calculations. But there is no waiver exception for Guidelines
calculations. To the contrary, Lawson explicitly gave up his right to appeal “the
manner in which the sentence is determined.” Plea Agreement ¶ 15(b). This
argument therefore falls within the scope of the waiver.
Analogizing from issues presented in Lawson’s previous appeal, Lawson’s
counsel suggests another argument that he might attempt (although counsel
ultimately does not believe it avoids the waiver). As noted, the question in that
appeal was whether one of Lawson’s prior convictions was properly counted as an
ACCA predicate conviction—specifically, whether an Oklahoma conviction for
possessing a “controlled dangerous substance” (CDS) with intent to distribute
3 counted as a “serious drug offense” for purposes of the ACCA’s career-offender
enhancement. See Lawson, 827 F. App’x at 887 (internal quotation marks omitted).
Our answer was “no.” See id. at 889. At the resentencing hearing, the district court
did not apply the career-offender enhancement, but when calculating Lawson’s
Guidelines range, it found a base offense level of 24 because it deemed Lawson’s
CDS conviction to be a “controlled substance offense,” USSG § 2K2.1(a)(2).
Lawson’s counsel believes Lawson may wish to argue that, just as Oklahoma’s CDS
statute does not describe a “serious drug offense” for ACCA purposes, it does not
describe a “controlled substance offense” for Guidelines purposes. And, says
counsel, Lawson may claim that this argument falls within the waiver exception
regarding applicability of the ACCA.
We agree with counsel that, whatever the merits of the underlying argument, it
does not avoid the appeal waiver. Although the argument may analogize to cases
interpreting the ACCA, it is not an argument about “the applicability of the ACCA,”
Plea Agreement ¶ 15(b) (emphasis added).
We have independently reviewed the record and have found no other potential
bases for avoiding the appeal waiver. Accordingly, we find that this appeal falls
within the scope of the waiver.
We next ask “whether the defendant knowingly and voluntarily waived his
appellate rights.” Hahn, 359 F.3d at 1325. Lawson presents no argument in this
regard, but his counsel suggests an argument (which, again, she ultimately finds
meritless). Counsel proposes that the district court overemphasized the advisory
4 Guidelines range at the expense of properly weighing the 18 U.S.C. § 3553(a)
factors, leading to a greater-than-necessary sentence. “Mr. Lawson,” says counsel,
“cannot be held to have knowingly and voluntarily waived his right to appeal a
sentence imposed pursuant to an improper application of the statutory factors.”
Aplt’s Resp. to Mot. to Enforce Appellate Waiver at 12.
Although couched in terms of knowing and voluntary waiver, this argument
(if Lawson were to make it) is fundamentally an attack on the substantive
reasonableness of the sentence. See United States v. Ellis, 525 F.3d 960, 964
(10th Cir. 2008) (“A sentence is substantively unreasonable if, considering the
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 28, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6195 (D.C. No. 5:19-CR-00006-R-1) CHARLES LEONARD LAWSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, MORITZ, and CARSON, Circuit Judges. _________________________________
Charles Leonard Lawson has appealed from his sentence despite the appeal
waiver in his plea agreement. The government now moves to enforce that waiver
under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)
(per curiam). Lawson’s counsel responds that she is aware of no non-frivolous
argument for overcoming the waiver and she has moved to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). We gave Lawson an opportunity to file a pro
se response, which he did. For the reasons explained below, we will grant the
* 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. government’s motion to enforce the appeal waiver, grant counsel’s motion to
withdraw, and dismiss this appeal.
In January 2019, a grand jury in the Western District of Oklahoma indicted
Lawson on various offenses related to firearms and controlled substances. Lawson
soon agreed to plead guilty to one count of being a felon in possession of a firearm in
exchange for dismissal of the other charges. He further agreed to waive his “right to
appeal [his] sentence as imposed by the Court, including . . . the manner in which the
sentence is determined.” Mot. to Enforce Appellate Waiver, Attach. 1 (“Plea
Agreement”) ¶ 15(b). But the appeal waiver contained two exceptions: (1) “the
applicability of the [Armed Career Criminal Act (ACCA)] enhancement should the
Court find the ACCA enhancement applies,” and (2) “the substantive reasonableness
of [his] sentence” if the district court imposed a sentence “above the advisory
Guidelines range determined by the Court to apply to Defendant’s case.” Id.
At the change-of-plea hearing, the district court conducted a thorough colloquy
with Lawson and found that he intelligently and voluntarily waived the rights he was
giving up through his plea agreement, including his right to appeal. The district court
therefore accepted the agreement.
As implied by the appeal waiver’s ACCA exception, the parties disputed
whether the ACCA’s career-offender enhancement applied. See 18 U.S.C.
§ 924(e)(1) (imposing a fifteen-year minimum sentence on persons convicted of
illegally possessing a firearm who have three previous convictions for “a violent
felony or a serious drug offense”). At sentencing, the district court ruled against
2 Lawson on that issue and sentenced him to the mandatory fifteen-year minimum.
Lawson then challenged that decision before this court. We held that one of the prior
convictions on which the district court relied did not count for career-offender
purposes, so we vacated and remanded for resentencing. See United States v.
Lawson, 827 F. App’x 886, 889 (10th Cir. 2020).
On remand, the district court found that Lawson’s advisory Guidelines range
was 110 to 120 months’ imprisonment and resentenced him to 120 months. Lawson
now appeals from that sentence.
Our first question when faced with a motion to enforce an appeal waiver is
“whether the disputed appeal falls within the scope of the waiver.” Hahn, 359 F.3d
at 1325. In his pro se response, Lawson argues that the district court overcounted his
prior convictions and therefore assessed too many criminal history points when
making its Guidelines calculations. But there is no waiver exception for Guidelines
calculations. To the contrary, Lawson explicitly gave up his right to appeal “the
manner in which the sentence is determined.” Plea Agreement ¶ 15(b). This
argument therefore falls within the scope of the waiver.
Analogizing from issues presented in Lawson’s previous appeal, Lawson’s
counsel suggests another argument that he might attempt (although counsel
ultimately does not believe it avoids the waiver). As noted, the question in that
appeal was whether one of Lawson’s prior convictions was properly counted as an
ACCA predicate conviction—specifically, whether an Oklahoma conviction for
possessing a “controlled dangerous substance” (CDS) with intent to distribute
3 counted as a “serious drug offense” for purposes of the ACCA’s career-offender
enhancement. See Lawson, 827 F. App’x at 887 (internal quotation marks omitted).
Our answer was “no.” See id. at 889. At the resentencing hearing, the district court
did not apply the career-offender enhancement, but when calculating Lawson’s
Guidelines range, it found a base offense level of 24 because it deemed Lawson’s
CDS conviction to be a “controlled substance offense,” USSG § 2K2.1(a)(2).
Lawson’s counsel believes Lawson may wish to argue that, just as Oklahoma’s CDS
statute does not describe a “serious drug offense” for ACCA purposes, it does not
describe a “controlled substance offense” for Guidelines purposes. And, says
counsel, Lawson may claim that this argument falls within the waiver exception
regarding applicability of the ACCA.
We agree with counsel that, whatever the merits of the underlying argument, it
does not avoid the appeal waiver. Although the argument may analogize to cases
interpreting the ACCA, it is not an argument about “the applicability of the ACCA,”
Plea Agreement ¶ 15(b) (emphasis added).
We have independently reviewed the record and have found no other potential
bases for avoiding the appeal waiver. Accordingly, we find that this appeal falls
within the scope of the waiver.
We next ask “whether the defendant knowingly and voluntarily waived his
appellate rights.” Hahn, 359 F.3d at 1325. Lawson presents no argument in this
regard, but his counsel suggests an argument (which, again, she ultimately finds
meritless). Counsel proposes that the district court overemphasized the advisory
4 Guidelines range at the expense of properly weighing the 18 U.S.C. § 3553(a)
factors, leading to a greater-than-necessary sentence. “Mr. Lawson,” says counsel,
“cannot be held to have knowingly and voluntarily waived his right to appeal a
sentence imposed pursuant to an improper application of the statutory factors.”
Aplt’s Resp. to Mot. to Enforce Appellate Waiver at 12.
Although couched in terms of knowing and voluntary waiver, this argument
(if Lawson were to make it) is fundamentally an attack on the substantive
reasonableness of the sentence. See United States v. Ellis, 525 F.3d 960, 964
(10th Cir. 2008) (“A sentence is substantively unreasonable if, considering the
factors set forth in 18 U.S.C. § 3553(a), the sentence is unreasonable in length.”).
Lawson may appeal an above-Guidelines sentence as substantively unreasonable, see
Plea Agreement ¶ 15(b), but he received a within-Guidelines sentence. And Lawson
was specifically warned—both in the plea agreement and at the change-of-plea
hearing—that he could receive a sentence of up to ten years. During that hearing, the
district court also asked, “[W]hile the Court assumes you hope to receive leniency,
are you prepared to accept any punishment permitted by law which the Court sees fit
to impose?” Mot. to Enforce Appellate Waiver, Attach. 2 at 8. Lawson answered,
“Yes, sir.” Id. In this light, we see no viable argument that his appeal waiver was
other than knowing and voluntary simply because the district court might sentence
him to the maximum allowable sentence.
The third question we normally ask is “whether enforcing the waiver would
result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. But Lawson makes no
5 argument in this regard, nor does his counsel suggest any. We need not address a
Hahn factor that the defendant does not dispute. United States v. Porter, 405 F.3d
1136, 1143 (10th Cir. 2005). We deem Lawson to concede that enforcing his appeal
waiver would not result in a miscarriage of justice.
In sum, we find that this appeal falls within Lawson’s appeal waiver and that
no other Hahn factor counsels against enforcement of the waiver. We therefore grant
the government’s motion to enforce the appeal waiver and dismiss this appeal. We
also grant Lawson’s counsel’s motion to withdraw.
Entered for the Court Per Curiam