United States v. Scott

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 17, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-1358 (D.C. No. 1:15-CR-00030-PAB-1) DAVID SCOTT, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver in David Scott’s plea agreement pursuant to United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Exercising jurisdiction under

28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

Scott pleaded guilty to possession of a firearm by a previously convicted felon,

in violation of 18 U.S.C. § 922(g)(1). As part of his plea agreement, he waived his

right to appeal his conviction and sentence, unless the government appealed the

sentence or the sentence exceeded either the ten-year statutory maximum, see

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 18 U.S.C. § 924(a)(2), or time served. Scott acknowledged in the plea agreement that

he was entering his plea knowingly and voluntarily and that he understood its

consequences, including the possible sentences and appeal waiver. At the change of

plea hearing, the district court reminded him of the possible sentences and broad

appeal waiver, and he confirmed that he understood and that he wanted to plead

guilty. Based on his responses to the court’s questions and its observations of his

demeanor during the hearing, the court accepted Scott’s plea as having been

knowingly and voluntarily entered. The court then sentenced him to time served.

Despite the fact none of the exceptions to the appeal waiver applied,1 Scott filed a

notice of appeal.

In ruling on a motion to enforce, we consider: “(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.

In response to the government’s motion to enforce, Scott, through counsel,

“acknowledge[d] that his appeal waiver is enforceable under the standards set out in

[Hahn].” Aplt. Resp. at 1. He thus conceded that his waiver was knowing and

voluntary, that his appeal falls within the scope of the waiver, and that enforcement

of the waiver would not result in a miscarriage of justice. See United States v.

1 The government did not appeal the sentence. 2 Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting that court need not address

uncontested Hahn factor).

Accordingly, we grant the government’s motion to enforce the appeal waiver

and dismiss the appeal.

Entered for the Court Per Curiam