United States v. Ndyabagye

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 10, 2022
• Docket: 22-2045
• Status: Unpublished

Opinion

Appellate Case: 22-2045 Document: 010110722780 Date Filed: 08/10/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 10, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-2045 (D.C. No. 1:18-CR-04164-KWR-1) ROBERT NDYABAGYE, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, EID, and ROSSMAN, Circuit Judges. _________________________________

Robert Ndyabagye pleaded guilty to interference with interstate commerce by

robbery and violence in violation of 18 U.S.C. § 1951, and possession and

brandishing of a firearm in furtherance of a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Mr. Ndyabagye to

41 months on the robbery count and 84 months on the firearm count, to run

consecutively. Although Mr. Ndyabagye’s plea agreement contained an appeal

waiver, he now seeks to appeal his sentence. The government has filed a motion to

enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315, 1328

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-2045 Document: 010110722780 Date Filed: 08/10/2022 Page: 2

(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and

dismiss the appeal.

In calculating the sentencing guideline range, the district court applied a

two-level enhancement to the applicable offense level under U.S.S.G.

§ 2B3.1(b)(4)(B). That enhancement applies where the court finds by a

preponderance of the evidence that in carrying out the robbery the defendant

physically restrained the victim. The two-level enhancement increased the advisory

sentencing guideline range for the robbery count to 41 to 51 months. Absent the

enhancement, Mr. Ndyabagye asserts the range would have been 33 to 41 months.

He contends the district court committed legal error in applying § 2B3.1(b)(4)(B) and

seeks to appeal his sentence solely on that basis.

We consider three factors in determining whether to enforce an appeal waiver

in a plea agreement: (1) whether the disputed appeal falls within the scope of the

waiver; (2) whether the waiver was knowing and voluntary; and (3) whether

enforcing the waiver would result in a miscarriage of justice. Hahn, 359 F.3d

at 1325. Mr. Ndyabagye does not dispute that the waiver was knowing and

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

1136, 1143 (10th Cir. 2005).

Concerning the waiver’s scope, “we will strictly construe appeal waivers and

any ambiguities in these agreements will be read against the Government and in favor

of a defendant’s appellate rights.” Hahn, 359 F.3d at 1325 (brackets and internal

quotation marks omitted). Here, the waiver provided in relevant part:

2 Appellate Case: 22-2045 Document: 010110722780 Date Filed: 08/10/2022 Page: 3

The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant’s conviction(s) and any sentence, including any fine, within the statutory maximum authorized by law, as well as any order of restitution entered by the Court.

Plea Agreement at 8-9. We see no ambiguity in this language. Because

Mr. Ndyabagye does not contend that his sentence exceeded the applicable statutory

maximums, his challenge to the two-level enhancement falls squarely within this

appeal waiver.

Mr. Ndyabagye argues that enforcing the appeal waiver would be a

miscarriage of justice because the waiver is “otherwise unlawful.” Hahn, 359 F.3d

at 1327. He contends that if he is not allowed to appeal under the circumstances

presented here, then “these plea agreements are nothing more than contracts of

adhesion.” Resp. at 8. We understand his argument to be a policy-based objection to

appeal waivers, which this court has rejected. See id. at 1318 (stating that “public

policy strongly supports [appellate] waivers as they benefit defendants, the

government, and society at large”).

For the foregoing reasons, we grant the government’s motion to enforce the appeal

waiver and dismiss the appeal.

Entered for the Court Per Curiam