United States v. Vermillion , 448 F. App'x 799 ( 2011 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    September 2, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff!Appellee,
    No. 11-3153
    v.                                          (D.C. No. 5:10-CR-40028-JAR-1)
    (D. Kan.)
    JASON EUGENE VERMILLION,
    Defendant!Appellant .
    ORDER AND JUDGMENT *
    Before BRISCOE, Chief Judge, EBEL and HARTZ, Circuit Judges.
    After accepting a plea agreement that included a waiver of his right to
    appeal, Jason Eugene Vermillion pleaded guilty to one count of conspiracy to
    distribute 500 grams or more of a mixture and substance containing a detectable
    amount of methamphetamine, a violation of 
    21 U.S.C. § 846
    . He was sentenced
    to the term of imprisonment proposed in the plea agreement, 180 months. Despite
    *
    This panel has determined unanimously that oral argument would not
    materially assist 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 This order and judgment is not binding precedent, except under the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.
    the waiver, he appealed. The government now has moved to enforce the appeal
    waiver. See United States v. Hahn, 
    359 F.3d 1315
    , 1328 (10th Cir. 2004)
    (en banc) (per curiam).
    Under Hahn, in evaluating a motion to enforce a waiver, 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.” 
    Id. at 1325
    . Mr. Vermillion contends that his appeal does not fall within
    the scope of the appeal waiver and that his plea was not knowing and voluntary.
    He concedes that the miscarriage-of-justice factor is inapplicable in this case.
    Scope of the Waiver
    Mr. Vermillion seeks to raise one argument on direct appeal: that the
    district court erred in refusing to order the presentence report (PSR) to be
    amended to delete a reference to him having been arrested for another crime,
    when those prior charges had been dismissed. Mr. Vermillion believes that this
    information could be prejudicial to his prison placement. He contends that this
    limited issue does not fall within the scope of his appeal waiver.
    Mr. Vermillion’s appeal waiver is quite broad:
    The defendant knowingly and voluntarily waives any right to
    appeal or collaterally attack any matter in connection with this
    prosecution, the defendant’s conviction, or the components of the
    sentence to be imposed herein including the length and conditions of
    supervised release. The defendant is aware that Title 18, U.S.C.
    -2-
    § 3742 affords a defendant the right to appeal the conviction and
    sentence imposed. By entering into this agreement, the defendant
    knowingly waives any right to appeal a sentence imposed which is
    within the guideline range determined appropriate by the court. . . .
    In other words, the defendant waives the right to appeal the sentence
    imposed in this case except to the extent, if any, the court departs
    upwards from the applicable sentencing guideline range determined
    by the court. . . .
    Notwithstanding the forgoing [sic] waivers, the parties
    understand that the defendant in no way waives any subsequent
    claims with regards to ineffective assistance of counsel or
    prosecutorial misconduct.
    Plea Agt. at 5-6.
    Mr. Vermillion concedes that “[t]he Government correctly points to the
    first sentence of the Waiver Clause as the operative text.” Resp. at 6. But he
    contends that “[h]e does not challenge the fact of his prosecution, his conviction,
    the length of his sentence or the conditions of his supervised release. As such,
    [his] appeal does not fall with in [sic] the scope of the waiver.” Id. He also more
    specifically discusses why his PSR issue does not fall within the terms
    “components of the sentence” and “sentence imposed in this case.”
    Mr. Vermillion ignores, however, the first part of the first sentence of the
    waiver, namely his waiver of his right to appeal “any matter in connection with
    this prosecution.” Even if his PSR issue does not constitute a component of his
    sentence or a part of the sentence imposed in this case, it qualifies as a matter
    connected with this prosecution. The issue does not fall into the explicit
    exceptions to the waiver listed in the plea agreement (ineffective assistance of
    -3-
    counsel and prosecutorial misconduct), and Mr. Vermillion was sentenced exactly
    as his plea agreement contemplated. Accordingly, this appeal falls within the
    scope of the appeal waiver.
    Knowing and Voluntary Waiver
    Mr. Vermillion also argues that his waiver was not knowing and voluntary
    because, during the Fed. R. Crim. P. 11 colloquy, the district court did not insure
    that he was fully informed of the nature of the case against him. He asserts that
    “it is far from certain that [he] understood the evidence the Government sought to
    present,” and “[g]iven the paucity of his understanding of the case against him, it
    cannot be fairly stated that [he] knowingly and voluntarily entered into the Plea
    Agreement.” Resp. at 10. It is his burden to demonstrate that his waiver was not
    knowing and voluntary. See United States v. Edgar, 
    348 F.3d 867
    , 872-73
    (10th Cir. 2003).
    Although Mr. Vermillion calls into question the voluntariness of his plea,
    he does not seek to vacate his plea or to forego the advantages he received from
    his plea agreement. Rather, he simply wishes to avoid the appeal waiver. Thus,
    the proper focus of this argument is whether he knowingly and voluntarily
    accepted the waiver. Whether the district court erred in not further confirming
    whether Mr. Vermillion understood the nature of the evidence against him does
    not, by itself, make the waiver unknowing and involuntary. See Hahn, 
    359 F.3d at
    1326 n.12 (describing what it called “the logical failings of focusing on the
    -4-
    result of a proceeding, rather than on the right relinquished, in analyzing whether
    an appeal waiver is unknowing or involuntary”). Further, Mr. Vermillion
    misplaces his reliance on United States v. Wilken, 
    498 F.3d 1160
     (10th Cir. 2007),
    regarding ambiguities created by a colloquy. Wilken involved the district court’s
    error in discussing the waiver itself, not error in discussing some other aspect of
    the case. 
    Id. at 1166-69
    .
    In evaluating whether a waiver is knowing and voluntary, Hahn directs us
    to examine the plea agreement and the transcript of the Rule 11 colloquy.
    
    359 F.3d at 1325
    . Both indicate that Mr. Vermillion knowingly and voluntarily
    accepted the appeal waiver. See Plea Agt. at 5 (“The defendant knowingly and
    voluntarily waives any right to appeal . . .”); Plea Hr’g Tr. at 9 (acknowledging
    the appeal waiver); see also Plea Agt. at 10 (“The defendant is entering into this
    agreement knowingly, freely, and voluntarily.”); Plea Hr’g Tr. at 6
    (acknowledging that he freely and voluntarily chose to enter into the plea
    agreement). Mr. Vermillion has not identified any evidence to the contrary.
    The motion to enforce is GRANTED, and this appeal is DISMISSED.
    ENTERED FOR THE COURT
    PER CURIAM
    -5-
    

Document Info

Docket Number: 11-3153

Citation Numbers: 448 F. App'x 799

Judges: Briscoe, Ebel, Hartz

Filed Date: 9/2/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023