United States v. Phillips

Opinion

Appellate Case: 21-6108 Document: 010110647120 Date Filed: 02/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-6108 (D.C. No. 5:18-CR-00260-SLP-51) RYAN PHILLIPS, a/k/a Spartan, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, MORITZ, and CARSON, Circuit Judges. _________________________________

Ryan Phillips 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).

Phillips’s counsel responds that he is aware of no non-frivolous argument for

overcoming the waiver and he has moved to withdraw. See Anders v. California,

386 U.S. 738, 744 (1967). We gave Phillips an opportunity to file a pro se response,

which he did. For the reasons explained below, we will grant the government’s

motion to enforce the appeal waiver, grant counsel’s motion to withdraw, and dismiss

this appeal.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-6108 Document: 010110647120 Date Filed: 02/18/2022 Page: 2

In December 2018, a grand jury in the Western District of Oklahoma indicted

Phillips on various counts related to firearms and controlled substances. Phillips

agreed to plead guilty to two of those counts: (1) possessing, with intent to distribute,

500 grams or more of methamphetamine, and (2) possessing a firearm despite a

previous felony conviction. 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”)

¶ 21(b). The waiver included an exception, however, permitting an appeal of “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 Phillips. Phillips in turn asked questions, including to confirm that he could still

appeal if the district court imposed an above-Guidelines sentence. Based on all this,

the district court found that Phillips intelligently and voluntarily waived the rights he

was giving up through his plea agreement. The district court therefore accepted the

agreement.

At sentencing, the district court sentenced Phillips to 204 months on the

methamphetamine charge and 120 months on the firearms charge, to be served

concurrently. This sentence was not above the advisory Guidelines range determined

by the court to apply to Phillips’s case.

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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, Phillips points out that his Guidelines criminal

history calculation went up by eight points based on the actual amount of

methamphetamine involved (he says the court accepted 3,000 grams as the proper

calculation) and the number of firearms involved (three). He compares this to the

charges to which he pleaded—possessing 500 grams or more of methamphetamine

and illegally possessing (apparently) a single firearm—and asks, “Does the plea

waiver still hold even though I was sentenced outside of my plea agre[e]ment?”

Letter dated Feb. 3, 2022, at 1.

Phillips was not sentenced outside of his plea agreement. The agreement

contains no representations about Guidelines calculations other than the

government’s agreement that Phillips deserved certain downward adjustments for

acceptance of responsibility. The agreement explicitly states that the government

“reserves the right to inform the United States Probation Office and the Court of the

nature and extent of Defendant’s activities with respect to this case and all other

activities of Defendant that the United States deems relevant to sentencing.” Plea

Agreement ¶ 27. The parties also stipulated that “the amount of actual

methamphetamine associated with Defendant’s relevant conduct in this case is 2,950

grams,” id. ¶ 19, which appears to be what Phillips has in mind when he says that the

court made its Guidelines calculation based on 3,000 grams. The agreement contains

no similar stipulation to three guns, but Phillips withdrew an objection to the

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presentence report’s relevant calculation, stating (through counsel) “one firearm,

three, it doesn’t matter.” R. vol. III at 5.

In any event, Phillips’s appeal waiver “encompasses all appellate challenges to

the sentence other than those falling within the explicit exception for challenges to

upward departures.” United States v. Smith, 500 F.3d 1206, 1210 (10th Cir. 2007).

The district court did not depart upward, so any other argument (such as about

Guidelines calculations) “clearly fall[s] within the scope of the waiver.” Id. Indeed,

Phillips explicitly gave up his right to appeal “the manner in which the sentence is

determined.” Plea Agreement ¶ 21(b).

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.

Normally, we would go on to inquire “whether the defendant knowingly and

voluntarily waived his appellate rights” and “whether enforcing the waiver would

result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. But we need not address

a Hahn factor that the defendant does not dispute, see United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005), and Phillips does not raise any argument as to

these factors. We deem him to concede that his waiver was knowing and voluntary

and enforcing it would not result in a miscarriage of justice.

In sum, we find this appeal falls within Phillips’s appeal waiver and no other

Hahn factor counsels against enforcement of the waiver. We therefore grant the

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government’s motion to enforce the waiver, grant Phillips’s counsel’s motion to

withdraw, and dismiss this appeal.

Entered for the Court Per Curiam