United States v. Kientz ( 2008 )


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  •                                                                        FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
    
                                                                     December 9, 2008
                         UNITED STATES COURT OF APPEALS
                                                      Elisabeth A. Shumaker
                                                                        Clerk of Court
                                FOR THE TENTH CIRCUIT
    
    
        UNITED STATES OF AMERICA,
    
                    Plaintiff-Appellee,
                                                             No. 08-3226
        v.                                        (D.C. No. 6:08-CR-10005-WEB-1)
                                                              (D. Kan.)
        KAINE K. KIENTZ,
    
                    Defendant-Appellant.
    
    
                                ORDER AND JUDGMENT *
    
    
    Before TACHA, LUCERO, and MURPHY, Circuit Judges.
    
    
    
             Defendant Kaine K. Kientz pleaded guilty to possession of child
    
    pornography that was transported in interstate commerce, in violation of
    
    18 U.S.C. § 2252(a)(4)(B). In his plea agreement, defendant agreed to waive his
    
    right to appeal. Nonetheless, defendant has filed a notice of appeal. The
    
    government has now moved to enforce defendant’s appeal waiver under United
    
    
    
    *
          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 This order and judgment is not binding precedent, except under the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.
    States v. Hahn, 
    359 F.3d 1315
     (10th Cir. 2004) (en banc) (per curiam). We grant
    
    the motion and dismiss the appeal.
    
          Defendant stated in his plea agreement that he:
    
          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. . . . 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 upward
          from the applicable sentencing guideline range determined by the
          court.
    
    Mot. to Enforce, Attach. 1 (Plea Agreement) at 5. The district court imposed a
    
    sentence of 120 months of incarceration, which was at the maximum statutory
    
    penalty of ten years and well below the advisory guideline range of 324 to 405
    
    months of incarceration determined by the court.
    
          Under Hahn, 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.” 359 F.3d at 1325. The
    
    miscarriage-of-justice prong requires the defendant to show (a) “the district court
    
    relied on an impermissible factor such as race”; (b) “ineffective assistance of
    
    counsel in connection with the negotiation of the waiver renders the waiver
    
    invalid”; (c) his “sentence exceeds the statutory maximum”; or (d) his appeal
    
    
                                             -2-
    “waiver is otherwise unlawful” and the error “seriously affect[s] the fairness,
    
    integrity or public reputation of judicial proceedings.” Id. at 1327 (quotations
    
    omitted). The government’s motion addresses these considerations, explaining
    
    why none undermines defendant’s appeal waiver here.
    
          Defendant asserts that the issue he seeks to raise on appeal – an allegation
    
    that the district court misapplied the sentencing guidelines – does not fall within
    
    the scope of his waiver. He further contends that the waiver is “otherwise
    
    unlawful” under Hahn’s miscarriage-of-justice prong because he should be able to
    
    appeal the district court’s misapplication of the guidelines.
    
          Defendant’s arguments are without merit. The issue that he seeks to appeal
    
    falls squarely within the plain language of the appeal waiver, which specifically
    
    includes a waiver of the right to appeal any matter in connection with his
    
    sentence, including the components of the sentence, with the single exception
    
    being if the court departs upward from the applicable sentencing guideline that
    
    the court itself determines to apply. The sentence imposed was well below the
    
    sentencing guideline range and at the statutory maximum. Thus, defendant’s
    
    appeal falls within the scope of the appeal waiver.
    
          The miscarriage-of-justice exception defendant invokes looks to whether
    
    “the waiver is otherwise unlawful,” id. at 1327 (quotation omitted and emphasis
    
    added), not whether some other aspect of the proceeding may have involved legal
    
    error. Defendant’s argument that his appeal waiver should be excused due to
    
                                             -3-
    alleged misapplication of the sentencing guidelines does not support the
    
    miscarriage-of-justice exception because his claim only concerns the correctness
    
    of his sentence; he has not asserted any claim regarding the relevant issue of
    
    whether the appeal waiver itself was unlawful. See United States v. Porter,
    
    
    405 F.3d 1136
    , 1144 (10th Cir. 2005) (“The relevant question . . . is not whether
    
    [defendant’s] sentence is unlawful . . . , but whether . . . his appeal waiver itself
    
    [is] unenforceable.”). His argument entails what Hahn noted as “the logical
    
    failing[] of focusing on the result of a proceeding, rather than on the right
    
    relinquished, in analyzing whether an appeal waiver is [valid].” Hahn, 359 F.3d
    
    at 1326 n.12. To hold that alleged errors under the sentencing guidelines render
    
    an appeal waiver unlawful would nullify the waiver based upon the very sort of
    
    claim it was intended to waive. In short, defendant has not shown that
    
    enforcement of the waiver would seriously affect the fairness, integrity, or public
    
    reputation of the judicial proceedings.
    
          Accordingly, the government’s motion to enforce the waiver is GRANTED
    
    and the appeal is DISMISSED.
    
    
                                              ENTERED FOR THE COURT
                                              PER CURIAM
    
    
    
    
                                               -4-
    

Document Info

DocketNumber: 08-3226

Filed Date: 12/9/2008

Precedential Status: Non-Precedential

Modified Date: 12/21/2014