FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 17, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1483 (D.C. No. 1:19-CR-00094-REB-1) ALEXANDER REOSLE SMITH, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before EID, KELLY, and CARSON, Circuit Judges. _________________________________
Alexander Reosle Smith pled guilty to one count of possession of ammunition
by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). Mr. Smith’s plea
agreement contained a broad waiver of his right to appeal his sentence. Despite this
waiver, Mr. Smith seeks to appeal his sentence and the manner in which it was
imposed. The government has filed a motion seeking to enforce the appeal waiver in
Mr. Smith’s plea agreement under United States v. Hahn, 359 F.3d 1315, 1328
(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and
dismiss the appeal.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I. Background
The district court sentenced Mr. Smith to 30 months in prison. This sentence
was at the low end of the advisory sentencing guidelines range of 30 to 37 months.
The district court also directed that Mr. Smith’s sentence “be served consecutively to
any sentence imposed previously or prospectively in any state or federal case,
including any sentence imposed by the District Court in and for the City and County
of Denver, Colorado, in Case Number 17CR8933.” Mot. to Enf., Attach. (Sentencing
Transcript) at 10.
II. Discussion
Under Hahn, we consider the following three factors in determining whether to
enforce an appeal waiver in a plea agreement: (1) does the disputed appeal fall
within the scope of the waiver; (2) was the waiver knowing and voluntary; and
(3) would enforcing the waiver result in a miscarriage of justice. 359 F.3d at 1325.
Mr. Smith does not assert that his appeal is outside the scope of his appeal waiver, so
we need not address that factor, see United States v. Porter, 405 F.3d 1136, 1143
(10th Cir. 2005). He argues that his waiver was not knowing and voluntary and that
enforcing the waiver would result in a miscarriage of justice.
A. Knowing and Voluntary
We look to two factors when determining whether a waiver of appellate rights
is knowing and voluntary. Hahn, 359 F.3d at 1325. “First, we examine whether the
language of the plea agreement states that the defendant entered the agreement
knowingly and voluntarily. Second, we look for an adequate Federal Rule of
2 Criminal Procedure 11 colloquy.” Id. (citation omitted). “The defendant has the
burden to prove that he did not knowingly and voluntarily enter into his plea
agreement.” United States v. Salas-Garcia, 698 F.3d 1242, 1254 (10th Cir. 2012).
Mr. Smith’s signed plea agreement states that he “knowingly and voluntarily
waive[d] the right to appeal any matter in connection with this prosecution,
conviction, or sentence . . . .” Mot. to Enf., Attach. (Plea Agreement) at 2-3. During
its Rule 11 plea colloquy, the district court reviewed the terms of the plea agreement
with Mr. Smith, including the waiver of his appellate rights. Mr. Smith
acknowledged to the court that he understood his appeal rights and that he understood
and accepted that he was waiving those rights in his plea agreement. The court also
explained that under the terms of the plea agreement, it had the discretion to
determine the sentence in his case. The court further explained “[t]hat means, among
other things, that [the court] will not be bound . . . at your sentencing hearing by what
anyone may have told you, promised you, or predicted for you about the sentence that
[the court] will impose.” Id., Attach. (Change of Plea Transcript) at 21. Mr. Smith
was asked if he understood, and he said yes.
Mr. Smith now argues that his waiver was not knowing and voluntary because
“[n]either the plea agreement nor the court colloquy informed him of a possibility of
consecutive sentences. And, quite the contrary, his counsel advised him that his
sentences would be concurrent.” Resp. at 3. But a defendant does not need to “know
with specificity the result he forfeits before his waiver is valid.” Hahn, 359 F.3d at
1327. “The law ordinarily considers a waiver knowing, intelligent, and sufficiently
3 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.” Id. (brackets and internal
quotation marks omitted).
Mr. Smith stated at the change of plea hearing that he understood the district
court had the discretion to impose whatever sentence it considered appropriate and
that he was giving up his right to appeal his sentence. As for counsel advising him
that his sentences would be concurrent, his counsel admitted at sentencing that no
such language appears in the plea agreement. Moreover, Mr. Smith acknowledged at
his change of plea hearing that the district court would not be bound at sentencing by
what anyone may have told him, promised him, or predicted for him about his
sentence. Mr. Smith’s general waiver of his right to appeal his sentence was
knowing and voluntary even if he did not know the specific consequence of invoking
it—i.e, that he was giving up a challenge to the district court’s decision to order his
federal sentence to run consecutively to an anticipated state sentence.
B. Miscarriage of Justice
Mr. Smith next argues that enforcing his appeal waiver would result in a
miscarriage of justice. In Hahn, we held that enforcement of an appeal waiver does
not result in a miscarriage of justice unless enforcement would result in one of four
enumerated situations, including “where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid.” 359 F.3d
at 1327 (internal quotation marks omitted). Mr. Smith asserts this situation is present
4 here “because in signing the appeal waiver [he] relied on his counsel’s incorrect
advice that his sentences would be concurrent.” Resp. at 4.
We make no comment on the merits of Mr. Smith’s claim, but we conclude
that it cannot be raised on direct appeal and therefore it will not prevent enforcement
of the appeal waiver at this stage in the proceedings. In Hahn, we explained that
“[g]enerally, we only consider ineffective assistance of counsel claims on collateral
review.” Hahn, 359 F.3d at 1327 n.13. And we expressly stated that our holding in
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 17, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1483 (D.C. No. 1:19-CR-00094-REB-1) ALEXANDER REOSLE SMITH, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before EID, KELLY, and CARSON, Circuit Judges. _________________________________
Alexander Reosle Smith pled guilty to one count of possession of ammunition
by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). Mr. Smith’s plea
agreement contained a broad waiver of his right to appeal his sentence. Despite this
waiver, Mr. Smith seeks to appeal his sentence and the manner in which it was
imposed. The government has filed a motion seeking to enforce the appeal waiver in
Mr. Smith’s plea agreement under United States v. Hahn, 359 F.3d 1315, 1328
(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and
dismiss the appeal.
* 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. I. Background
The district court sentenced Mr. Smith to 30 months in prison. This sentence
was at the low end of the advisory sentencing guidelines range of 30 to 37 months.
The district court also directed that Mr. Smith’s sentence “be served consecutively to
any sentence imposed previously or prospectively in any state or federal case,
including any sentence imposed by the District Court in and for the City and County
of Denver, Colorado, in Case Number 17CR8933.” Mot. to Enf., Attach. (Sentencing
Transcript) at 10.
II. Discussion
Under Hahn, we consider the following three factors in determining whether to
enforce an appeal waiver in a plea agreement: (1) does the disputed appeal fall
within the scope of the waiver; (2) was the waiver knowing and voluntary; and
(3) would enforcing the waiver result in a miscarriage of justice. 359 F.3d at 1325.
Mr. Smith does not assert that his appeal is outside the scope of his appeal waiver, so
we need not address that factor, see United States v. Porter, 405 F.3d 1136, 1143
(10th Cir. 2005). He argues that his waiver was not knowing and voluntary and that
enforcing the waiver would result in a miscarriage of justice.
A. Knowing and Voluntary
We look to two factors when determining whether a waiver of appellate rights
is knowing and voluntary. Hahn, 359 F.3d at 1325. “First, we examine whether the
language of the plea agreement states that the defendant entered the agreement
knowingly and voluntarily. Second, we look for an adequate Federal Rule of
2 Criminal Procedure 11 colloquy.” Id. (citation omitted). “The defendant has the
burden to prove that he did not knowingly and voluntarily enter into his plea
agreement.” United States v. Salas-Garcia, 698 F.3d 1242, 1254 (10th Cir. 2012).
Mr. Smith’s signed plea agreement states that he “knowingly and voluntarily
waive[d] the right to appeal any matter in connection with this prosecution,
conviction, or sentence . . . .” Mot. to Enf., Attach. (Plea Agreement) at 2-3. During
its Rule 11 plea colloquy, the district court reviewed the terms of the plea agreement
with Mr. Smith, including the waiver of his appellate rights. Mr. Smith
acknowledged to the court that he understood his appeal rights and that he understood
and accepted that he was waiving those rights in his plea agreement. The court also
explained that under the terms of the plea agreement, it had the discretion to
determine the sentence in his case. The court further explained “[t]hat means, among
other things, that [the court] will not be bound . . . at your sentencing hearing by what
anyone may have told you, promised you, or predicted for you about the sentence that
[the court] will impose.” Id., Attach. (Change of Plea Transcript) at 21. Mr. Smith
was asked if he understood, and he said yes.
Mr. Smith now argues that his waiver was not knowing and voluntary because
“[n]either the plea agreement nor the court colloquy informed him of a possibility of
consecutive sentences. And, quite the contrary, his counsel advised him that his
sentences would be concurrent.” Resp. at 3. But a defendant does not need to “know
with specificity the result he forfeits before his waiver is valid.” Hahn, 359 F.3d at
1327. “The law ordinarily considers a waiver knowing, intelligent, and sufficiently
3 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.” Id. (brackets and internal
quotation marks omitted).
Mr. Smith stated at the change of plea hearing that he understood the district
court had the discretion to impose whatever sentence it considered appropriate and
that he was giving up his right to appeal his sentence. As for counsel advising him
that his sentences would be concurrent, his counsel admitted at sentencing that no
such language appears in the plea agreement. Moreover, Mr. Smith acknowledged at
his change of plea hearing that the district court would not be bound at sentencing by
what anyone may have told him, promised him, or predicted for him about his
sentence. Mr. Smith’s general waiver of his right to appeal his sentence was
knowing and voluntary even if he did not know the specific consequence of invoking
it—i.e, that he was giving up a challenge to the district court’s decision to order his
federal sentence to run consecutively to an anticipated state sentence.
B. Miscarriage of Justice
Mr. Smith next argues that enforcing his appeal waiver would result in a
miscarriage of justice. In Hahn, we held that enforcement of an appeal waiver does
not result in a miscarriage of justice unless enforcement would result in one of four
enumerated situations, including “where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid.” 359 F.3d
at 1327 (internal quotation marks omitted). Mr. Smith asserts this situation is present
4 here “because in signing the appeal waiver [he] relied on his counsel’s incorrect
advice that his sentences would be concurrent.” Resp. at 4.
We make no comment on the merits of Mr. Smith’s claim, but we conclude
that it cannot be raised on direct appeal and therefore it will not prevent enforcement
of the appeal waiver at this stage in the proceedings. In Hahn, we explained that
“[g]enerally, we only consider ineffective assistance of counsel claims on collateral
review.” Hahn, 359 F.3d at 1327 n.13. And we expressly stated that our holding in
Hahn “does not disturb this longstanding rule.” Id. We later reiterated that “[t]his
rule applies even where a defendant seeks to invalidate an appellate waiver based on
ineffective assistance of counsel.” Porter, 405 F.3d at 1144.
Although Mr. Smith suggests that his claim for ineffective assistance of
counsel should be considered on direct appeal instead of in a collateral proceeding,
we disagree. We have “considered ineffective assistance of counsel claims on direct
appeal in limited circumstances, but only where the issue was raised before and ruled
upon by the district court and a sufficient factual record exists.” United States v.
Flood, 635 F.3d 1255, 1260 (10th Cir. 2011). But the circumstances here do not fall
within the narrow exception to our general rule because the district court did not rule
on the issue.
5 III. Conclusion
For the foregoing reasons, we grant the government’s motion to enforce and
dismiss this appeal. This dismissal is without prejudice to Mr. Smith filing a
collateral action to bring a claim for ineffective assistance of counsel.
Entered for the Court Per Curiam