United States v. Prestel

60 F.4th 616

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 21, 2023
• Docket: 22-7009
• Status: Published

Opinion

Appellate Case: 22-7009 Document: 010110815033 Date Filed: 02/21/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 21, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-7009

ANTHONY DEAN PRESTEL,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00020-JFH-1) _________________________________

Submitted on the briefs: *

Bretta Pirie, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, and Tiffany Johnson, Research and Writing Specialist, with her on the briefs), Office of the Federal Public Defender, Salt Lake City, Utah, for Defendant-Appellant

Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the briefs), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee _________________________________

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

HARTZ, Circuit Judge.

* 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. Appellate Case: 22-7009 Document: 010110815033 Date Filed: 02/21/2023 Page: 2

_________________________________

Arguing that the United States District Court for the Eastern District of

Oklahoma unlawfully imposed three special conditions of supervised release as part

of his sentence for sexual abuse in Indian country, Anthony Dean Prestel appeals the

imposition of those conditions. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), and affirm. In accordance with our decisions in United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004), and United States v. Holzer, 32 F.4th 875

(10th Cir. 2022), we hold that Mr. Prestel waived his right to appeal the three

conditions.

In July 2021 Mr. Prestel entered into a plea agreement with the government

under Federal Rule of Criminal Procedure 11(c)(1)(C) providing that he would plead

guilty to sexual abuse in Indian country, in violation of 18 U.S.C. §§ 1151, 1152,

2242(2)(A), and 2246(2)(A), and would receive a term of imprisonment of 300

months. The agreement did not specify the term or conditions of Mr. Prestel’s

supervised release. But under the heading “MAXIMUM POSSIBLE

IMPRISONMENT AND/OR FINE,” the agreement stated, “The defendant

understands that the maximum possible penalty for Sexual Abuse in Indian Country

is imprisonment for a period of Life and/or a fine of $250,000.00, a term of

supervised release of at least 5 years up to a lifetime term to be determined by the

Court, and a special assessment in the amount of $100.00 and up to $5,100.” R., Vol.

I at 21 (original emphasis omitted and emphasis added).

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The agreement also contained an appellate waiver. In a section titled

“WAIVER OF APPELLATE AND POST-CONVICTION RIGHTS,” it provided, in

relevant part:

In consideration of the promises and concessions made by the United States in this Plea Agreement, the defendant knowingly and voluntarily agrees and understands the following appellate . . . terms of this agreement: a. the defendant waives the right to directly appeal the conviction and sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a); b. the defendant reserves the right to appeal from a sentence which exceeds the statutory maximum. Id. at 23.

The court accepted Mr. Prestel’s plea and imposed the agreed-upon 300-month

sentence. It also imposed supervised release lasting throughout Mr. Prestel’s life and

placed nine special conditions on this supervised release. Mr. Prestel contests three of

the special conditions:

4. The defendant shall not possess or use a computer with access to any on-line computer service at any location (including place of employment) without the prior written approval of the probation officer. This includes any Internet Service provider, bulletin board system or any other public or private network or e-mail system. 5. The defendant shall not own or possess any type of camera, photographic device and/or equipment, including video recording equipment, without the approval of the United States Probation Officer. 6. The defendant shall not view, purchase, possess, or distribute any form of pornography depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2), unless approved for treatment purposes, or frequent any place where such material is the primary product for sale or entertainment is available. Id. at 41. He argues that the district court did not offer the on-the-record explanations

and findings required to impose conditions 4, 5, or 6; that the court did not make the

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heightened findings required to impose conditions 4 and 6, which implicate his

fundamental rights or impose occupational restrictions; that conditions 4, 5, and 6

impermissibly delegate authority to impose punishment to nonjudicial officers; and

that condition 6 is void for vagueness.

The government argues that the conditions are lawful but also contends that

Mr. Prestel’s challenges to his conditions of supervised release are barred by the

appellate waiver in his plea agreement. Mr. Prestel argues to the contrary, but we

agree with the government that the appellate waiver bars his challenges.

“[W]e generally enforce plea agreements and their concomitant waivers of

appellate rights.” Hahn, 359 F.3d at 1318. We review de novo the enforceability of

an appellate waiver. See United States v. Williams, 10 F.4th 965, 971 (10th Cir.

2021). We engage in a three-prong inquiry, asking “(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.” Hahn, 359 F.3d at 1325. Mr. Prestel

would answer no to the first two questions and yes to the third. We are not persuaded.

Mr. Prestel first argues that his waiver does not encompass his challenge to the

conditions of supervised release. He relies on the language in the waiver allowing

him “to appeal from a sentence which exceeds the statutory maximum.” R., Vol. I at

23. He contends that because the district court failed to make the findings required to

impose these conditions, it lacked the authority to impose them for any period. The

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challenged conditions, imposed for life, therefore “clearly exceed the statutory

maximum of zero months.” Reply Br. at 4.

But this argument is foreclosed by our recent decision in Holzer, 32 F.4th 875.

The appellate waiver in that case also granted an exception if “the sentence exceeds

the maximum penalty provided in the statute of conviction.” Id. at 882 (internal

quotation marks omitted). The defendant argued that an allegedly unlawful condition

of supervised release—a 15-year prohibition on possessing white-supremacist or anti-

Semitic material—exceeded the statutory maximum because the restriction violated

his rights under the First Amendment. We disagreed, holding that “a condition of

release—as opposed to a term of release—even if it is an unreasonable one, does not

exceed a statutory maximum.” Id. at 883 (brackets and internal quotation marks

omitted). We explained that “a special condition of supervised release . . . is typically

not quantifiable in nature,” and therefore such a condition cannot exceed a maximum,

which is an expression of quantity. Id. at 885. We rejected the argument, which is

essentially the one Mr. Prestel makes in this appeal, that “there is no real distinction

between a sentence that exceeds the limits of the law and a sentence that exceeds the

statutory maximum.” Id. (internal quotation marks omitted). (Mr. Prestel does not

appeal the lifetime term of his supervised release, which is quantifiable but does not

exceed the maximum term, under 18 U.S.C. § 3583(k), of five years to life.) Because

his conditions of supervised release do not (indeed, cannot) exceed the statutory

maximum, this appeal falls within the scope of Mr. Prestel’s appellate waiver.

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Mr. Prestel next argues, under Hahn’s second prong, that his waiver was not

knowing and voluntary because “a defendant may presume that any waiver would not

apply to an unlawful sentence, and that a sentencing court will act lawfully in

imposing a sentence.” Reply Br. at 6. He relies on this court’s opinion in United

States v. Gordon, 480 F.3d 1205 (10th Cir. 2007), which said that the defendant “did

not waive the right to appeal a sentence . . . beyond that which could be lawfully

imposed,” id. at 1209, and that “we should presume that all promises made were

legal, and that the . . . district judge[] will act legally in executing the [plea]

agreement,” id. at 1210 (parentheses and internal quotation marks omitted). We held

that the appellate waiver, which did not mention restitution, did not bar the

defendant’s challenge to the amount of restitution. As Mr. Prestel’s Reply Brief

recognizes, however, the quoted statements referred not to whether a waiver was

knowing and voluntary but, rather, to the scope of the waiver. And, as we have just

explained, Holzer governs our scope-of-waiver analysis. In any event, if interpreted

broadly the quoted language in Gordon would override all waivers of sentencing

challenges, since a challenge must be based on the assertion that the sentence was

unlawful in some respect. Thus, we made clear less than six months after Gordon was

issued that the opinion is to be read as narrowly restricted to the circumstances of

that case. See United States v. Cooper, 498 F.3d 1156, 1160 (10th Cir. 2007) (“The

exception created by Gordon . . . is extremely narrow and applies only in the case

where there is no factual dispute as to the amount of restitution linked to an offense

and the legality of the district court’s restitution award can therefore be reviewed

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solely as a question of law.”); see also United States v. Williams, 861 F. App’x 185,

188 (10th Cir. 2021) (Gordon should not be “read to suggest a broad exception to an

appeal waiver, allowing a defendant to evade the waiver whenever he challenges a

restitution order as unlawful”). Mr. Prestel “has the burden to present evidence from

the record establishing that he did not understand the waiver.” United States v.

Edgar, 348 F.3d 867, 872–73 (10th Cir. 2003). But he has produced no such

evidence.

Finally, invoking Hahn’s third prong, Mr. Prestel asserts that enforcing the

waiver would create a miscarriage of justice. He raises two arguments. We are not

persuaded.

One of Mr. Prestel’s arguments repeats an assertion we have already rejected.

He relies on the statement in Hahn that a miscarriage of justice occurs when “the

sentence exceeds the statutory maximum,” 359 F.3d at 1327 (internal quotation

marks omitted), and then argues that the three challenged conditions of release fit

that description. But we have already pointed out that Holzer rejected the notion that

an unquantifiable aspect of punishment, such as the typical condition of supervised

release, can exceed a statutory maximum. See 32 F.4th at 887.

Mr. Prestel’s other argument is based on Hahn’s statement that enforcement of

a waiver creates a miscarriage of justice “where the waiver is otherwise unlawful.”

359 F.3d at 1327 (internal quotation marks omitted). He contends his waiver is

unlawful because it precludes us from addressing whether the three supervised

release conditions “plainly violate the established law of this Circuit.” Reply Br. at 8.

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But, again as Holzer explained, this “exception [to our general enforcement of

appellate waivers] looks to whether the waiver is otherwise unlawful, not to whether

another aspect of the sentencing proceeding may have involved legal error.” 32 F.4th

at 887 (brackets and internal quotation marks omitted). “An appeal waiver is not

‘unlawful’ merely because the claimed error would, in the absence of waiver, be

appealable.” United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007). Mr.

Prestel has not shown, or even argued, that his appellate waiver is otherwise

unlawful, so we reject his argument under Hahn’s third prong.

We DENY Mr. Prestel’s request that we vacate conditions 4, 5, and 6 of his

supervised release and AFFIRM his sentence.