United States v. Jordan ( 2022 )

Appellate Case: 22-2042 Document: 010110714778 Date Filed: 07/22/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 22, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2042
(D.C. No. 1:21-CR-00275-KWR-1)
ERICK JORDAN, (D. N.M.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, KELLY and EID, Circuit Judges.
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Erick Jordan pleaded guilty to being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1). The district court applied a
four-level enhancement to the applicable offense level, increasing the advisory
sentencing guidelines range to 84 to 105 months in prison. The court sentenced
Mr. Jordan to 84 months. Although Mr. Jordan’s plea agreement contained a waiver
of his right to appeal his sentence, he now seeks to appeal on the ground that the
district court improperly relied on hearsay testimony as support for the four-level
enhancement. The government has filed a motion to enforce the appeal waiver under
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 22-2042 Document: 010110714778 Date Filed: 07/22/2022 Page: 2
United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
We grant the government’s motion and dismiss the appeal.
Under Hahn, we consider three factors in determining whether to enforce an
appeal waiver in a plea agreement: (1) whether the disputed appeal falls within the
scope of the waiver; (2) whether the waiver was knowing and voluntary; and
(3) whether enforcing the waiver would result in a miscarriage of justice. Id. at 1325.
Mr. Jordan does not assert that his appeal is outside the scope of his appeal waiver,
so we need not address that factor, see United States v. Porter, 405 F.3d 1136, 1143
(10th Cir. 2005).
Mr. Jordan’s primary argument is that enforcing his appeal waiver would
result in a miscarriage of justice. In Hahn, we held that enforcement of an appeal
waiver does not result in a miscarriage of justice unless it would result in one of four
situations: “[1] where the district court relied on an impermissible factor such as
race, [2] where ineffective assistance of counsel in connection with the negotiation of
the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory
maximum, or [4] where the waiver is otherwise unlawful.” 359 F.3d at 1327(internal quotation marks omitted). Mr. Jordan contends the waiver is otherwise
unlawful because misapplications of the guidelines seriously affect the fairness and
integrity of judicial proceedings.
We have repeatedly rejected this argument. Mr. Jordan’s argument focuses on the
alleged sentencing error, not on the lawfulness of the waiver. But “[o]ur inquiry is not
whether the sentence is unlawful, but whether the waiver itself is unlawful because of
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some procedural error or because no waiver is possible.” United States v. Sandoval,
477 F.3d 1204, 1208 (10th Cir. 2007). “To allow alleged errors in computing a
defendant’s sentence to render a waiver unlawful would nullify the waiver based on the
very sort of claim it was intended to waive.” United States v. Smith, 500 F.3d 1206, 1213
(10th Cir. 2007). Mr. Jordan’s contention that the district court miscalculated the
guideline range does not explain how his waiver here is otherwise unlawful.1
Mr. Jordan also argues that his waiver was not knowing and voluntary. We
examine two factors in determining whether Mr. Jordan knowingly and voluntarily
waived his appellate rights: “(1) whether the language of the plea agreement states
that he entered the agreement knowingly and voluntarily, and (2) whether the record
reveals an adequate colloquy under Federal Rule of Criminal Procedure 11.”
Sandoval, 477 F.3d at 1207. Mr. Jordan does not challenge the adequacy of the
colloquy, and he expressly agreed in the plea agreement that his guilty plea was
“freely and voluntarily made.” R. vol. 1 at 27. In addition, just above his signature,
Mr. Jordan affirmed the agreement had been read to him in a language he understood,
1
We acknowledge Mr. Jordan’s reliance on Supreme Court precedent
discussing guideline errors in the context of plain-error review, particularly
Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). But this precedent does
not alter the requirement that to fit within Hahn’s fourth miscarriage-of-justice
situation the defendant must show that the waiver itself is otherwise unlawful. We
also note that under the Supreme Court’s plain-error precedent, a court may not
exercise its discretion to correct a guideline error not raised before the district court if
the error “has . . . been intentionally relinquished or abandoned.” Molina-Martinez v.
United States, 578 U.S. 189, 194 (2016).
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he had carefully discussed every part of the agreement with his attorney, and he
understood the terms of the agreement and voluntarily agreed to them. Id. at 29.
Still, Mr. Jordan argues his appeal waiver was not made knowingly and
voluntarily, for two reasons. First, he argues the plea agreement says the guideline
range would be calculated correctly. The relevant language states only that “[t]he
United States agrees to recommend the low-end of the correctly-calculated,
applicable guideline range.” Id. at 23. Nothing in that statement limits the appeal
waiver, which appears in an altogether separate section of the agreement. Second,
Mr. Jordan notes that during the sentencing hearing his counsel attempted to preserve
a challenge to the guidelines calculation. He argues that this demonstrates that all
parties “were under the impression that Mr. Jordan was preserving the challenge for
appeal.” Resp. to Mot. to Enforce at 8. But the plea agreement says it is “a complete
statement of the agreement . . . and may not be altered unless done so in writing and
signed by all parties.” Id. at 28. Counsel’s oral statements in court therefore did not
alter the appeal waiver contained in the plea agreement.
For the foregoing reasons, we grant the government’s motion to enforce the appeal
waiver and dismiss the appeal. Mr. Jordan’s motion for leave to file a reply is granted.
Entered for the Court
Per Curiam
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