United States v. Russell , 48 F. App'x 727 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 16 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-3144
v. D.C. No. 98-CR-40107-05-SAC
(D. Kansas)
MICHAEL E. RUSSELL,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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 res judicata, collateral estoppel, and law of the case. 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.
The defendant Michael E. Russell argues that the district court erred in
refusing to grant him a three-level decrease in his offense level pursuant to
section 3E1.1 of the United States Sentencing Guidelines. Because Mr. Russell
and the government stipulated to the offense level, we conclude that we lack
jurisdiction over this appeal.
I. BACKGROUND
The defendant Michael E. Russell pleaded guilty to one count of possession
of 27.45 grams of methamphetamine with the intent to distribute (a violation of
21 U.S.C. § 841(a)(1)), and one count of perjury (a violation of 18 U.S.C. §
1623). After receiving the proposed presentence report, Mr. Russell filed a
motion to withdraw his guilty plea. Mr. Russell argued that his attorney had
misinformed him as to whether certain drug quantities involved in the conspiracy
alleged in the indictment would be considered in determining relevant conduct at
sentencing. See Rec. vol. I, doc. 220 (Motion to Withdraw Guilty Plea, and
attached affidavit of Michael E. Russell). The district court denied Mr. Russell’s
motion, reasoning that although Mr. Russell disagreed with the presentence
report, he had failed to establish that his guilty plea was not knowing and
voluntary. See Rec. vol. I doc. 232, at 16-26. (Dist. Ct. Order, filed Jan. 30,
2001).
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At the beginning of Mr. Russell’s sentencing hearing, the district court
announced its proposed rulings on Mr. Russell’s objections to the presentence
report. The court explained that the rulings were tentative and that it would
consider any additional evidence presented by the parties. The court then
suggested a recess so that the parties could attempt to reach an agreement as to
the disputed issues.
After a recess, the prosecutor announced that the parties had reached the
following agreement:
[W]e have reached an agreement whereby the parties
stipulate that the applicable base offense level, based on
the amount of methamphetamine involved, which was
eight grams of actual, would be a 24. The defendant
indicated he’s willing to stipulate that he not receive
credit for acceptance of responsibility. He’s going to
stipulate to the application of a two-level enhancement for
obstruction and the application of a two-level enhancement
for firearm possession, which results in a final or total
offense level of 28. The defendant is also willing to
stipulate to a criminal history category of 4, which makes
the applicable guideline [range] 110 to 137 months if my
calculations are correct. There are no agreements as to
where the defendant should end up within that guideline
range, and each of the parties reserves the right to argue to
the court what sentence within that 110-137 month
guideline range should be imposed.
Rec. vol VIII, doc. 285, at 28 (Tr. of Sentencing Hr’g, May 2, 2001).
The court then asked Mr. Russell’s counsel about the prosecutor’s
statement. Mr. Russell’s counsel replied, “[T]hat is the appropriate agreement.”
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Id. Next, the court asked Mr. Russell if the prosecutor’s statement reflected Mr.
Russell’s understanding of the agreement and if Mr. Russell was “satisfied with
that understanding and agreement.” Id. at 29. Mr. Russell responded
affirmatively, and the court accepted the stipulation.
The court then set Mr. Russell’s total offense level at twenty-eight and his
criminal history at four. The court sentenced Mr. Russell to concurrent terms of
imprisonment of 123 months on the methamphetamine charge and 60 months on
the perjury charge, as well as a term of supervised release.
On appeal, Mr. Russell’s counsel has filed an Anders brief and a motion to
withdraw. See Counsel’s Motion to Withdraw Pursuant to Tenth Circuit Rule
46.4(B) (citing Anders v. California , 386 U.S. 738, 744 (1967) (permitting
counsel who considers an appeal to be wholly frivolous to advise the court of that
fact, request permission to withdraw from the case, and submit a brief referring to
portions of the record that arguably support the appeal)). In this brief, Mr.
Russell’s counsel argues that Mr. Russell is entitled to a three-level reduction in
his offense level pursuant to section 3E1.1 of the United States Sentencing
Guidelines.
II. DISCUSSION
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Generally, we review the district court’s interpretation and application of
the sentencing guidelines de novo and review the underlying factual
determinations for clear error. United States v. Pappert , 112 F.3d 1073, 1078
(10th Cir.1997). However, when, as here, the government contends that the
defendant has waived his right to appeal his sentence, the ultimate question of
whether that wavier was knowing, voluntary, and therefore enforceable is a
question of law that we examine de novo. United States v. Rubio , 231 F.3d 709,
712 (10th Cir. 2000).
Upon review of the record, we agree with Mr. Russell’s counsel that, in
light of the stipulation announced at the sentencing hearing, Mr. Russell’s
challenge to the district court’s application of the Guidelines is frivolous. This
circuit has held that when a defendant knowingly and voluntarily agrees to a
particular offense level, we lack jurisdiction to review a resulting sentence that is
based upon that offense level and is otherwise lawful and consistent with the
Sentencing Guidelines. See United States v. Veri , 108 F.3d 1311, 1313-15 (10th
Cir. 1997) (construing Fed. R. Crim. P. 11(e)(1)(C), which allows the parties to
“agree that a specific sentence is the appropriate disposition of the case”). Here,
Mr. Russell has not argued that the stipulation was not knowing and voluntary.
Instead, his only challenge is to the court’s setting of the offense level at twenty-
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eight. By stipulating to that offense level at sentencing, he has waived his right
to appeal that determination.
Moreover, there is no indication in the record that Mr. Russell’s sentence is
inconsistent with the Guidelines or otherwise unlawful. Therefore, we lack
jurisdiction over this appeal.
III. CONCLUSION
Accordingly, we GRANT Mr. Russell’s counsel’s motion to withdraw, and
we DISMISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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