United States v. Porter

905 F.3d 1175
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 10, 2018
DocketNo. 18-5000
StatusPublished
Cited by9 cases

This text of 905 F.3d 1175 (United States v. Porter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Porter, 905 F.3d 1175 (10th Cir. 2018).

Opinion

O'BRIEN, Circuit Judge.

Between 2006 and 2010, Shannon Porter used the TurboTax software program to electronically file 123 false tax returns with the Internal Revenue Service (IRS) requesting $357,361 in refunds. The returns contained accurate taxpayer identification information which Porter either stole or purchased from the taxpayer or a third party. However, the returns falsely reported the taxpayer to be self-employed1 and as having disabled dependents in order for the taxpayer to be eligible for a refund. Although the IRS rejected many of the returns and requested refunds, it paid out $180,397 to Porter, which she promptly spent. For this conduct, she pled guilty to making a false statement to the United States in violation of 18 U.S.C. § 287 and was sentenced to 48 months imprisonment to be followed by a three-year term of supervised release. She completed her prison sentence but her release was short-lived.

In a mere five weeks, she violated the conditions of supervised release by, among other things, stealing $2,964.92 worth of merchandise from various stores in a local *1178mall. The judge revoked her supervised release and sentenced her to 24 months imprisonment to be followed by a new 12-month term of supervised release. A month after her release from that prison term, she again violated the terms of her release, this time by stealing expensive sunglasses from a local optical store. The judge again revoked her supervised release and sentenced her to 24 months imprisonment; no new term of supervised release was imposed.2

To keep track of the various sentences for discussion purposes, a simple table is helpful:

Imprisonment Sentence Supervised Release Term Original Conviction 48 months 36 months* First Revocation 24 months 12 months** Second Revocation 24 months none * Served approximately 7 weeks before arrest ** Served approximately 5 weeks before arrest
* Served approximately 7 weeks before arrest
** Served approximately 5 weeks before arrest

Porter challenges her most recent sentence (24 months in prison, but no new term of supervised release). Before we decide that issue, we must first determine whether Porter waived her right to bring this appeal.

A. Waiver of Appellate Rights

Porter's original plea to making a false statement against the United States resulted from a plea agreement containing a waiver of appellate rights. Relevant here, Porter "waive[d] the right to directly appeal the conviction and sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a)," but reserved "the right to appeal from a sentence which exceeds the statutory maximum." (R. Vol. 1 at 41.) The government seeks to enforce that waiver to this appeal-an appeal not from the original sentence but from the sentence imposed following the second revocation of supervised release. It tells us (1) Porter's appeal falls squarely within the scope of the waiver, (2) she knowingly and voluntarily waived her appellate rights, and (3) enforcing the waiver would not result in a miscarriage of justice. See United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004). That strikes us as improper.

We interpret a plea agreement as we would any contract and in light of "what the defendant reasonably understood when [s]he entered [her] plea." United States v. Lonjose , 663 F.3d 1292, 1297 (10th Cir. 2011) (quotation marks omitted). Waivers of appellate rights in a plea agreement are "to be construed narrowly." Id .

*1179In determining their scope, any ambiguity "will be read against the government and in favor of [the] defendant's appellate rights." Id . (quotation marks omitted).

Lonjose involved a negotiated guilty plea to one count of sexual abuse of a minor in Indian Country. Id . at 1295. In the plea agreement, Lonjose "knowingly waive[d] the right to appeal any sentence within the statutory range applicable to the statute(s) of conviction." Id . (quotation marks omitted). The judge sentenced him to 51 months in prison to be followed by three years of supervised release. Id . Although the judgment listed various conditions of supervised release, it failed to include a condition prohibiting or limiting Lonjose's contact with minors. Id . at 1296. Before his release from prison, the probation officer moved to modify the conditions of supervised release to include a no-contact with minors provision. Id . The judge granted the motion; Lonjose appealed. Id . at 1296-97. The government argued the appeal was foreclosed by the waiver of appellate rights in the plea agreement. Id . at 1297.

We concluded Lonjose's appeal from the modification of the conditions of supervised release fell outside the scope of his appellate waiver. Id . at 1297. "[The] waiver of the right to appeal 'any sentence' encompasses only the right to appeal the original sentence imposed at sentencing and memorialized in the judgment," and does not encompass the right to appeal a subsequent modification of the conditions of supervised release. Id . at 1302. That is because "there is a distinct 'right to appeal' which comes into existence when the judgment of conviction is filed and expires after 14 days (or up to 44 days if the government appeals). [And] it is this distinct right to appeal that a defendant would reasonably understand he is waiving with a generic appellate waiver such as the one in this case." Id . at 1299. Moreover, although a modification of supervised release conditions "create[s] a right of appeal that is separate from a defendant's right to appeal his original sentence," "[t]he language of [Lonjose]'s appellate waiver ... does not include waiver of the separate right to appeal [from such modification]." Id . at 1300. We see no daylight between that case and this one.

Porter waived the right to directly appeal from "the ... sentence," which is narrower than Lonjose's appellate waiver of "any sentence." By doing so, Porter would have reasonably understood at the time of her guilty plea that she was waiving only discretely expressed rights, notably the right to directly appeal from the sentence imposed in accordance with that plea (the original sentence of 48 months).

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Cite This Page — Counsel Stack

Bluebook (online)
905 F.3d 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-porter-ca10-2018.