United States v. Booker , 704 F. App'x 787 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 28, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3167
(D.C. No. 5:15-CR-40030-CM-1)
JOHN T. BOOKER, JR., a/k/a Muhammad (D. Kan.)
Abdullah Hassan,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, HOLMES, and MORITZ, Circuit Judges.
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After accepting a plea agreement that included a waiver of his right to appeal,
John T. Booker, Jr., pleaded guilty to attempted use of a weapon of mass destruction
and attempted destruction of government property by fire or explosion. He was
sentenced to concurrent 360- and 240-month terms of imprisonment followed by a
lifetime term of supervised release. Despite the waiver, Booker filed an appeal
challenging some of the conditions of his supervised release. The government has
moved to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
(10th Cir. 2004) (en banc) (per curiam). We grant the motion to enforce and dismiss
the appeal.
The sentencing court adopted the recommendations in the presentence report
and imposed the following special conditions of supervision:
[Booker] must not participate in any anti-government or tax protesting
activities, or associate with individuals who are known members of
these groups, or possess any literature advocating or supporting these
groups during the term of supervision.
....
[Booker] must not possess, view, access, or otherwise use material that
reflects extremist or terroristic views or as deemed to be inappropriate
by the U.S. Probation Office.
R., Vol. 2 at 41-42, ¶¶ 131, 134. We need not reach the merits of Booker’s
contentions that these conditions are impermissible, however, because he waived his
right to appeal his sentence, including the special conditions above, under the express
terms of the plea agreement.
To evaluate a motion to enforce a waiver, 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.” Hahn, 359 F.3d at
1325. “[P]lea agreements are governed by contract principles.” United States v.
Cooper, 498 F.3d 1156, 1159 (10th Cir. 2007).
Nothing in the agreement supports Booker’s contention that his appeal is
outside the scope of the waiver simply because he seeks to challenge his sentence on
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constitutional grounds. Under the terms of the plea agreement, Booker “knowingly
and voluntarily waive[d] any right to appeal or collaterally attack any matter in
connection with . . . the components of the sentence . . . including the length and
conditions of supervised release . . . .” R., Vol. 1 at 66. Because he did not retain the
right to appeal the conditions of supervised release, Booker’s waiver of his right to
appeal his sentence extends to the special conditions of his supervised release, and
the first Hahn requirement is met. See United States v. Sandoval, 477 F.3d 1204,
1207 (10th Cir. 2007).
Booker makes no assertion that his waiver was not knowing and voluntary—
Hahn’s second requirement. Our independent review of the record persuades us
there is no basis for concluding that he did not knowingly and voluntarily agree to the
waiver.
Nor are we persuaded that enforcing the waiver would result in a miscarriage
of justice under Hahn’s third requirement. We have held that a miscarriage of justice
under Hahn occurs in only four narrow circumstances, and Booker has not
established that any of them apply such that the waiver itself was unlawful. See
Sandoval, 477 F.3d at 1208 (“Our inquiry is not whether the sentence is unlawful, but
whether the waiver itself is unlawful because of some procedural error or because no
waiver is possible.”). Booker’s citations to cases where the sentencing court
exceeded its statutory authority in sentencing a defendant are unavailing because that
scenario did not occur here. See, e.g., United States v. Hudson, 483 F.3d 707, 710
(10th Cir. 2007) (concluding waiver did not encompass right to appeal unlawful
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restitution order); United States v. Gordon, 480 F.3d 1205, 1209 (10th Cir. 2007)
(same). Nor does Booker challenge the validity of his plea or waiver due to
ineffective assistance of counsel. Cf. United States v. Cockerham, 237 F.3d 1179,
1191 (10th Cir. 2001).
Accordingly, we grant the motion to enforce and dismiss this appeal.
Entered for the Court
Per Curiam
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