United States v. Roberts , 189 F. App'x 761 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 21, 2006
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,
No. 06-7037
v. (D.C. No. 05-CR-42-W )
(E.D. Okla.)
HARR Y LA VONN RO BERTS,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, HA RTZ, and M cCO NNELL, Circuit Judges.
Defendant Harry Lavonn Roberts pled guilty, pursuant to a plea agreement,
to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced him to sixty-three months of imprisonment to be
followed by thirty-six months of supervised release. Although M r. Roberts
waived his right to appeal his sentence “on any ground,” Plea Agreement at 9, he
*
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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
nonetheless filed this appeal. The government has filed a motion to enforce
M r. Roberts’ waiver of appellate rights under United States v. Hahn, 359 F.3d
1315 (10th Cir. 2004) (en banc) (per curiam). M r. Roberts has responded that the
motion should be denied because enforcing the plea agreement will result in a
miscarriage of justice. As discussed below, we grant the government’s motion
and dismiss the appeal.
In Hahn, 359 F.3d at 1325, this court held that “in review ing appeals
brought after a defendant has entered into an appeal waiver” this court will
determine “(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.” A s is applicable here, a miscarriage of justice will result
if “the waiver is otherwise unlawful,” to the extent that the alleged error
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 1327 (quotations omitted; citing United States v. Olano,
507 U.S. 725, 732 (1993)).
The government’s motion to enforce addresses each of the three Hahn
prongs. M r. Roberts, however, opposes the motion only on the third prong. W e
therefore address only that prong. 1 See United States v. Porter, 405 F.3d 1136,
1
It is clear from the plea agreement and plea colloquy that this appeal falls
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1143 (10th Cir.) (recognizing court need not address each Hahn factor if
defendant does not make argument with respect to that factor), cert. denied,
126 S. Ct. 550 (2005).
M r. Roberts argues that enforcement of the plea agreement would seriously
affect the fairness, integrity, or public reputation of judicial proceedings. He
primarily bases his argument on a recent Tenth Circuit decision, United States v.
Ingle, No. 06-5091, 2006 W L 1828537 (10th Cir. July 5, 2006). According to
M r. R oberts, Ingle held that a conviction for being a felon in possession of a
firearm is not a crime of violence. See id. at *1, *4. Based on his interpretation
of Ingle, M r. Roberts contends that it was a miscarriage of justice for the district
court to treat his conviction as a crime of violence when imposing a sentence of
sixty-three month’s imprisonment. Also, he maintains he could not waive the
right to appeal this issue because Ingle had not been decided at the time of his
sentencing.
W e disagree with M r. Roberts’ interpretation of Ingle. Ingle clearly limited
its holding to cases decided under the Bail Reform Act of 1984. Id. That Act is
inapplicable to M r. Roberts’ sentencing. Rather, at sentencing, the district court
decided, based on the charging instrument, that M r. Roberts’ predicate conviction
1
(...continued)
within the scope of the waiver of appellate rights and M r. Roberts knowingly and
voluntarily waived his appellate rights.
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for burglary was a crime of violence under the definition set forth in the
Sentencing Guidelines. Sentencing Tr. at 41-42; see also U.S.S.G. § 4B1.2(a)(2)
(defining crime of violence to include offense of burglary of dwelling punishable
by greater than one year of imprisonment); United States v. Vigil, 334 F.3d 1215,
1218-19 (10th Cir. 2003) (permitting court to determine nature of offense by
looking at charging document). Ingle does not overrule the guidelines’ definition.
Furthermore, the plea agreement stated that the statutory maximum
sentence was ten years and that the district court was free to impose a sentence up
to ten years’ imprisonment. At the plea colloquy, M r. Roberts stated that he
understood that the maximum sentence was up to ten years’ imprisonment. The
sentence imposed conforms with the plea agreement’s terms and M r. Roberts’
understanding of the plea. See United States v. M aldonado, 410 F.3d 1231, 1234
(10th Cir.) (per curiam) cert. denied, 126 S. Ct. 577 (2005). M r. Roberts merely
speculates that the district court was unaware that it could impose only supervised
release, without a term of imprisonment.
W e conclude that M r. Roberts has not met his burden to persuade us that
the waiver is “otherwise unlawful.” Id. at 1233. Concerns of fairness, integrity,
and public reputation favor enforcing the appellate waiver.
W e GRANT the government’s motion to enforce the plea agreement and
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DISM ISS the appeal. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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