FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6087 (D.C. No. 5:16-CR-00160-R-2) ZACHARY ANDREW SHAW, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and EID, Circuit Judges. _________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Zachary Andrew Shaw’s plea agreement. We
grant defense counsel’s motion to withdraw, grant the government’s motion to
enforce Shaw’s appeal waiver, and dismiss the appeal.
Shaw pleaded guilty pursuant to a plea agreement to “knowingly and
intentionally possessing with the intent to distribute a quantity of a mixture or
substance containing a detectable amount of methamphetamine, its salts, isomers, and
* This panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. salts of its isomers, a Schedule II controlled substance, in violation of 21 U.S.C.
§ 841(a)(1).” Mot. to Enforce, Ex. 1 (Plea Agmt.) at 2. The statutory maximum
penalty for this offense is 20 years’ (240 months’) imprisonment. See 21 U.S.C.
§ 841(b)(1)(C). The district court found that the applicable advisory guidelines
sentencing range was 235 to 240 months’ imprisonment. The court imposed a
below-guidelines 163-month sentence.
The plea agreement included the following waiver of Shaw’s appellate rights:
Defendant . . . understands that 28 U.S.C. § 1291, and 18 U.S.C. § 3742, give him the right to appeal the judgment and sentence imposed by the Court. Acknowledging . . . this, and in exchange for the promises and concessions made by the United States in this plea agreement, defendant knowingly and voluntarily waives the following rights: a. Defendant waives his right to appeal his guilty plea, and any other aspect of his conviction, including but not limited to any rulings on pretrial suppression motions or any other pretrial dispositions of motions and issues; b. Except as stated immediately below, defendant waives his right to appeal his sentence as imposed by the Court, including any restitution, and the manner in which the sentence is determined. If the sentence is above the advisory guideline range determined by the Court to apply to his case, this waiver does not include the defendant’s right to appeal specifically the substantive reasonableness of his sentence. Plea Agmt. at 5-6.
The government filed a motion to enforce the plea agreement under United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating
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
2 voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325.
Shaw’s counsel responded to the government’s motion. Citing Anders v.
California, 386 U.S. 738, 744 (1967), counsel states that Shaw has no non-frivolous
argument against enforcement of his appeal waiver. Counsel also requests
permission to withdraw from representing Shaw pursuant to Anders. See id. We
gave Shaw an opportunity to file a pro se response to the motion to enforce. See id.
In his pro se response, Shaw does not explicitly contend that his appeal
issue—a sentencing challenge—falls outside the scope of his appeal waiver or that
his waiver was not knowing and voluntary. He argues that enforcement of the waiver
would result in a miscarriage of justice because the government caused the district
court to commit a procedural error at sentencing that affected his substantial rights.
More specifically, Shaw maintains that the government misrepresented to the
district court that his base offense level in the pre-sentence report was calculated
based on a mixture rather than pure methamphetamine; consequently, the district
court miscalculated his advisory sentencing range. Additionally, Shaw argues that
the government incorrectly informed the district court that his status as a career
offender would determine the applicable guidelines range. Shaw maintains that his
appeal waiver should not be enforced because he could not have anticipated that the
government would cause the district court to commit procedural error at his
sentencing.
3 Shaw has the burden to demonstrate that enforcement of his appeal waiver
would result in a miscarriage of justice. See United States v. Anderson, 374 F.3d
955, 959 (10th Cir. 2004). We will find that enforcement of an appeal waiver results
in a miscarriage of justice only “[1] where the district court relied on an
impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where
the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise
unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks omitted). “This list is
exclusive: enforcement of an appellate waiver does not result in a miscarriage of
justice unless enforcement would result in one of the four situations enumerated
above.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011) (internal
quotation marks omitted).
Because Shaw fails to invoke any of the other three miscarriage-of-justice
factors, we construe his contention as arguing that his waiver is “otherwise unlawful”
because the district court’s sentencing error, as allegedly caused by the government,
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Hahn, 359 F.3d at 1327 (internal quotation marks omitted).
Shaw’s contention fundamentally misunderstands “what must be ‘unlawful’
for a waiver to result in a miscarriage of justice.” United States v. Sandoval,
477 F.3d 1204, 1208 (10th Cir. 2007).
Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful because of some procedural error or because no waiver is possible. An appeal waiver is not “unlawful” merely because the claimed
4 error would, in the absence of waiver, be appealable. To so hold would make a waiver an empty gesture. Id. (citation omitted).
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6087 (D.C. No. 5:16-CR-00160-R-2) ZACHARY ANDREW SHAW, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and EID, Circuit Judges. _________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Zachary Andrew Shaw’s plea agreement. We
grant defense counsel’s motion to withdraw, grant the government’s motion to
enforce Shaw’s appeal waiver, and dismiss the appeal.
Shaw pleaded guilty pursuant to a plea agreement to “knowingly and
intentionally possessing with the intent to distribute a quantity of a mixture or
substance containing a detectable amount of methamphetamine, its salts, isomers, and
* This panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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. salts of its isomers, a Schedule II controlled substance, in violation of 21 U.S.C.
§ 841(a)(1).” Mot. to Enforce, Ex. 1 (Plea Agmt.) at 2. The statutory maximum
penalty for this offense is 20 years’ (240 months’) imprisonment. See 21 U.S.C.
§ 841(b)(1)(C). The district court found that the applicable advisory guidelines
sentencing range was 235 to 240 months’ imprisonment. The court imposed a
below-guidelines 163-month sentence.
The plea agreement included the following waiver of Shaw’s appellate rights:
Defendant . . . understands that 28 U.S.C. § 1291, and 18 U.S.C. § 3742, give him the right to appeal the judgment and sentence imposed by the Court. Acknowledging . . . this, and in exchange for the promises and concessions made by the United States in this plea agreement, defendant knowingly and voluntarily waives the following rights: a. Defendant waives his right to appeal his guilty plea, and any other aspect of his conviction, including but not limited to any rulings on pretrial suppression motions or any other pretrial dispositions of motions and issues; b. Except as stated immediately below, defendant waives his right to appeal his sentence as imposed by the Court, including any restitution, and the manner in which the sentence is determined. If the sentence is above the advisory guideline range determined by the Court to apply to his case, this waiver does not include the defendant’s right to appeal specifically the substantive reasonableness of his sentence. Plea Agmt. at 5-6.
The government filed a motion to enforce the plea agreement under United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating
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
2 voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325.
Shaw’s counsel responded to the government’s motion. Citing Anders v.
California, 386 U.S. 738, 744 (1967), counsel states that Shaw has no non-frivolous
argument against enforcement of his appeal waiver. Counsel also requests
permission to withdraw from representing Shaw pursuant to Anders. See id. We
gave Shaw an opportunity to file a pro se response to the motion to enforce. See id.
In his pro se response, Shaw does not explicitly contend that his appeal
issue—a sentencing challenge—falls outside the scope of his appeal waiver or that
his waiver was not knowing and voluntary. He argues that enforcement of the waiver
would result in a miscarriage of justice because the government caused the district
court to commit a procedural error at sentencing that affected his substantial rights.
More specifically, Shaw maintains that the government misrepresented to the
district court that his base offense level in the pre-sentence report was calculated
based on a mixture rather than pure methamphetamine; consequently, the district
court miscalculated his advisory sentencing range. Additionally, Shaw argues that
the government incorrectly informed the district court that his status as a career
offender would determine the applicable guidelines range. Shaw maintains that his
appeal waiver should not be enforced because he could not have anticipated that the
government would cause the district court to commit procedural error at his
sentencing.
3 Shaw has the burden to demonstrate that enforcement of his appeal waiver
would result in a miscarriage of justice. See United States v. Anderson, 374 F.3d
955, 959 (10th Cir. 2004). We will find that enforcement of an appeal waiver results
in a miscarriage of justice only “[1] where the district court relied on an
impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where
the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise
unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks omitted). “This list is
exclusive: enforcement of an appellate waiver does not result in a miscarriage of
justice unless enforcement would result in one of the four situations enumerated
above.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011) (internal
quotation marks omitted).
Because Shaw fails to invoke any of the other three miscarriage-of-justice
factors, we construe his contention as arguing that his waiver is “otherwise unlawful”
because the district court’s sentencing error, as allegedly caused by the government,
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Hahn, 359 F.3d at 1327 (internal quotation marks omitted).
Shaw’s contention fundamentally misunderstands “what must be ‘unlawful’
for a waiver to result in a miscarriage of justice.” United States v. Sandoval,
477 F.3d 1204, 1208 (10th Cir. 2007).
Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful because of some procedural error or because no waiver is possible. An appeal waiver is not “unlawful” merely because the claimed
4 error would, in the absence of waiver, be appealable. To so hold would make a waiver an empty gesture. Id. (citation omitted). “The whole point of a waiver . . . is the relinquishment of
claims regardless of their merit.” Id. (internal quotation marks omitted). Thus, as
we further explained in United States v. Smith, 500 F.3d 1206 (10th Cir. 2007), this
miscarriage-of-justice exception
looks to whether the waiver is otherwise unlawful, not to whether another aspect of the proceeding may have involved legal error. [The defendant’s] argument that alleged errors in the court’s determination of her sentence should invalidate her appellate waiver illustrates what Hahn called “the logical failing of focusing on the result of the proceeding, rather than on the right relinquished, in analyzing whether an appeal waiver is valid.” [359 F.3d] at 1326 n. 12 (discussing whether an appeal waiver was knowing and voluntary); see also, e.g., United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999) (“A waiver of the right to appeal includes a waiver of the right to appeal blatant error.”). To allow alleged errors in computing a defendant’s sentence to render a waiver unlawful would nullify the waiver based on the very sort of claim it was intended to waive. Id. at 1212-13 (citation, ellipsis, brackets, and internal quotation marks omitted); see
also United States v. Shockey, 538 F.3d 1355, 1357-58 (10th Cir. 2008) (rejecting
contention that enforcement of an appeal waiver would amount to a miscarriage of
justice because the defendant’s sentence was so ambiguous as to be unlawful).
Moreover, Shaw’s assertion that he could not have anticipated the district
court’s sentencing error when he pleaded guilty does not change our analysis. In
Hahn we rejected the contention that an appeal waiver could not be knowing and
voluntary because a defendant “cannot possibly know in advance what errors a
district court might make in the process of arriving at an appropriate sentence.”
359 F.3d at 1326. Applying the Supreme Court’s reasoning that “[t]he law ordinarily
5 considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully
understands the nature of the right and how it would likely apply in general in the
circumstances—even though the defendant may not know the specific detailed
consequences of invoking it,” we declined to conclude that, “as a matter of law, all
presentencing waivers of appellate rights are unknowing and involuntary.” Id. at
1327 (internal quotation marks omitted). Thus, Shaw’s waiver of his right to appeal
“the manner in which the sentence is determined,” Plea Agmt. at 6, is enforceable.
Finally, Shaw’s contention that the government caused the district court’s
alleged sentencing error also does not make the enforcement of his appeal waiver
result in a miscarriage of justice. Although we will not enforce an appeal waiver
where the government breaches its obligations under the plea agreement, see United
States v. Trujillo, 537 F.3d 1195, 1200 (10th Cir. 2008), Shaw does not allege that
the government did so here. The government’s positions at sentencing, meritless or
not, do not affect the enforceability of Shaw’s knowing and voluntary waiver of his
right to appeal his below-guidelines sentence. Therefore, having failed to challenge
the lawfulness of his appeal waiver, the defendant has not met his burden to
demonstrate a miscarriage of justice.
Under Anders, we have reviewed the motion and the record and we concur
with the government and defense counsel that Shaw’s appeal issue falls within the
scope of his appeal waiver, his waiver was knowing and voluntary, and enforcement
of the waiver will not result in a miscarriage of justice. Accordingly, we grant the
6 government’s motion to dismiss this appeal and defense counsel’s motion to
withdraw.
Entered for the Court Per Curiam