United States v. Wells , 229 F. App'x 792 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 26, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 07-4033
(D.C. No. 1:06-CR -6-TS)
BR EA NNE JANETTE W ELLS, (D. Utah)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, HA RTZ, and HO LM ES, Circuit Judges.
Defendant Breanne Janette W ells pled guilty to one count of distribution of
a controlled substance in violation of 21 U.S.C. § 841(a)(1). Her plea agreement
states that she “knowingly, voluntarily and expressly waive[s] my right to appeal
any sentence imposed upon me, and the manner in which the sentence is
determined, on any of the grounds set forth in Title 18, United States Code,
*
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 This order and judgment is not binding precedent, except under the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.
Section 3742 or on any ground whatever.” Plea Agreement, ¶10 at 3. The
agreement did include an exception to the waiver, reserving defendant’s right to
appeal
(1) a sentence above the maximum penalty provided in the statute of
conviction . . . ; and (2) a sentence above the high-end of the
guideline range as determined by the district court at sentencing, or,
in the event that no such determination is made by the district court,
a sentence above the high-end of the guideline range as set forth in
the final presentence report.
Id. Based on an offense level of 29 and criminal history category of VI, the
probation officer calculated the guideline range at 151 to 188 months. The
district court sentenced defendant to 151 months in prison followed by 60 months
of supervised release. Defendant appealed her sentence and the government has
moved to enforce defendant’s appeal waiver under United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). W e grant the motion and
dismiss the appeal.
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.” Id. at 1325. The miscarriage-of-justice
prong requires the defendant to show (a) her sentence relied on an impermissible
factor such as race; (b) ineffective assistance of counsel in connection with the
negotiation of the appeal waiver rendered the waiver invalid; (c) her sentence
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exceeded the statutory maximum; or (d) her appeal waiver is otherwise unlawful
and the error “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion
addresses these considerations, explaining why none undermines defendant’s
appeal w aiver here. W e agree.
Defendant does not contest that her appeal falls within the scope of her
appeal waiver nor does she dispute that she knowingly and voluntarily waived her
appellate rights. Defendant argues, however, that her appeal waiver should not be
enforced because the waiver results in a miscarriage of justice. Specifically, she
asserts that “her appeal waiver should not be enforced because of the lengthy
sentence imposed, which is at least thirty one (31) months greater than set forth in
the plea agreement.” M emo. in O pp’n to M ot. to Enforce Plea Agmt. at 2. This
argument does not address any of the four sub-factors necessary to make a
showing on the miscarriage-of-justice prong. There is no showing that her
sentence relied on an impermissible factor, that her counsel was ineffective, that
her sentence exceeded the statutory maximum or that her appeal waiver is
otherwise unlawful. M oreover, her statement mischaracterizes the contents of the
plea agreement, which simply states that the government will recommend that the
defendant be sentenced to no more than 120 months, if all of the conditions of the
plea agreement are met. The government indicated at the sentencing hearing,
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however, that defendant’s post-plea conduct did not warrant any favorable
sentencing recommendations.
Defendant has not met her burden of establishing that her appeal waiver
should not be enforced. Accordingly, the motion to enforce the waiver is
GRANTED and the appeal is DISM ISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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