United States v. Price

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 19, 2021
• Docket: 20-1330
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 19, 2021 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-1330 (D.C. No. 1:16-CR-00352-MSK-GPG-1) RODNEY PRICE, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, McHUGH, and CARSON, Circuit Judges. _________________________________

Rodney Price pleaded guilty to possessing a firearm after having been

convicted of a felony. The district court sentenced him to serve fifty-five months in

prison, a term falling within the advisory Sentencing Guidelines range of fifty-one to

sixty-three months. The plea agreement included a broad waiver of Mr. Price’s

appellate rights. Yet he has filed a notice of appeal. The government now moves to

enforce the appeal waiver and to dismiss this appeal.

We will enforce an appeal waiver if (1) “the disputed appeal falls within” the

waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.”

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).

The government argues that all three of these circumstances exist in this case.

Mr. Price’s defense counsel responded to the government’s motion, asserting

that any opposition to the motion would be frivolous and moving to withdraw under

Anders v. California, 386 U.S. 738 (1967). Counsel did, however, identify two

potential issues. First, counsel says that Mr. Price believes the government breached

the plea agreement by failing to fully support his motion for a downward variance.

And second, counsel tells us that Mr. Price’s allegations may “raise the specter of

prosecutorial misconduct.” Resp. at 12. We sent a copy of counsel’s response to

Mr. Price and gave him a chance to file his own response. The deadline for Mr. Price

to respond has passed, and we have not received anything from him.

After reviewing the record, we conclude that Mr. Price’s appeal waiver should

be enforced under Hahn. In other words, the appeal falls within the scope of

Mr. Price’s waiver, his waiver was knowing and voluntary, and enforcing the waiver

would not result in a miscarriage of justice.

The prosecutor did not breach the plea agreement, conduct that would render

the appeal waiver unenforceable, see United States v. Doe, 865 F.3d 1295, 1301

(10th Cir. 2017). In the plea agreement, the prosecutor agreed to support Mr. Price’s

motion for a downward variance and to recommend a twenty-seven-month prison

sentence. These promises are listed in the presentence report. When a presentence

report contains the prosecutor’s recommendations, the prosecutor need not “allocute

2 in favor of specific adjustments in the defendant’s sentence.” United States v. Smith,

140 F.3d 1325, 1327 (10th Cir. 1998). It is enough that “the prosecutor does not

allocute against an agreed-upon adjustment.” Id. At the sentencing hearing in this

case, the prosecutor did not advocate against the sentence that he had agreed to

recommend. Quite the contrary, he explained why he thought a twenty-seven-month

sentence “would result in justice in the big picture.” R. vol. 3 at 58.

To the extent Mr. Price wishes to pursue a claim of prosecutorial misconduct,

he may not do so in a direct appeal. Mr. Price waived “the right to appeal any matter

in connection with” his case. Id. vol. 1 at 15. This waiver contained three

exceptions, but as defense counsel points out, none of them apply. And so the waiver

forecloses any prosecutorial-misconduct claim on direct appeal. Although

Mr. Price’s plea agreement required him to waive his right to collaterally attack his

conviction or sentence, the agreement contains an exception preserving his right to

pursue a collateral attack on the ground that he “was prejudiced by prosecutorial

misconduct.” Id. at 16. Mr. Price therefore must raise any prosecutorial-misconduct

claim in collateral proceedings rather than in a direct appeal.

We grant the government’s motion to enforce the appeal waiver, grant defense

counsel’s motion to withdraw, and dismiss this appeal.

Entered for the Court Per Curiam