United States v. Washington

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 16, 2024
• Docket: 23-5118
• Status: Unpublished

Opinion

Appellate Case: 23-5118 Document: 010111001749 Date Filed: 02/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5118 (D.C. No. 4:22-CR-00112-GKF-3) ULYSSES SEMION WASHINGTON, (N.D. Okla.) a/k/a Jaccpot, a/k/a Jack Pot,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, McHUGH, and EID, Circuit Judges. _________________________________

Ulysses Semion Washington appeals from his conviction, but his plea

agreement contains an appeal waiver. The government now moves to enforce that

waiver under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc).

Through counsel, Washington opposes the motion. For the reasons that follow, we

find Washington’s arguments unpersuasive and we grant the government’s motion.

A grand jury in the Northern District of Oklahoma charged Washington with

various offenses related to bribing a witness. The morning his trial was scheduled to

begin, he asked for and received a plea deal from the government. Through that deal,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-5118 Document: 010111001749 Date Filed: 02/16/2024 Page: 2

he agreed to plead guilty to one of the charges in exchange for the government

dismissing the rest.

Washington’s written plea agreement contains an appeal waiver: “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); except that the defendant reserves the

right to appeal from a sentence that exceeds the statutory maximum.” R. vol. I at 30,

§ 3(a). Washington initialed this page of the agreement, see id., provided his full

signature at the end of this section of the agreement (which covers both appellate and

collateral review waivers), see id. at 31, and provided his full signature on the last

page as well, see id. at 45. Finally, during the change-of-plea colloquy, the district

court specifically reviewed the appeal waiver with Washington:

THE COURT: Do you understand that by entering into this plea agreement with the government and by entering a plea of guilty, you will have waived, or given up, most of your rights to appeal and to collaterally attack all or part of your sentence?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Specifically, let me draw your attention to paragraph 3 of the plea agreement on page 3. In paragraph 3(a), you give up your right to directly appeal your conviction and sentence except you reserve the right to appeal from a sentence that exceeds the statutory maximum. Do you understand that, sir?

R. vol. I at 74–75.

The district court accepted the plea. A few weeks later, however, Washington

filed a pro se motion to withdraw it. He claimed his plea had not been knowing and 2 Appellate Case: 23-5118 Document: 010111001749 Date Filed: 02/16/2024 Page: 3

voluntary due to miscommunication with his defense attorney, and due to the effects

of medication.

The district court held an evidentiary hearing and then issued a written order

denying the motion. Later, at sentencing, the district court imposed a 108-month

prison sentence. This appeal followed, and the government has now moved to

dismiss based on the plea agreement’s appeal waiver.

The government’s motion would normally require us to address three

questions: “(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. But we need not address a Hahn factor the

defendant does not dispute. See United States v. Porter, 405 F.3d 1136, 1143

(10th Cir. 2005).

Washington does not dispute any of the Hahn factors. Instead, he argues that

appeal waivers cannot encompass a district court’s order denying a motion to

withdraw the plea. Otherwise, he says, such an order becomes effectively

unreviewable. Without citation to authority, he argues this violates “[b]asic notions

of fairness and due process.” Resp. at 4.

We have already rejected a materially identical argument. “[A]n appeal of a

denial of a motion to withdraw a guilty plea is an attempt to contest a conviction on

appeal, and thus falls within the plain language of the waiver provision.” United

States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001) (internal quotation marks

3 Appellate Case: 23-5118 Document: 010111001749 Date Filed: 02/16/2024 Page: 4

omitted). This means Washington “can contest his conviction by challenging the

guilty plea, but only at the district court level. . . . [H]is waiver forecloses . . .

appealing the district court’s decisions regarding his conviction and sentence,

including its denial of [his] motion to withdraw his plea.” Id. To hold otherwise

“would be to allow [Washington] to render a sham his promise not to [appeal] and

would deprive the government of the benefit of its bargain.” Id.

Because Washington offers no other argument against enforcement of his

waiver, we grant the government’s motion and dismiss this appeal.

Entered for the Court

Per Curiam