United States v. Harper ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6170
(D.C. No. 5:19-CR-00082-SLP-1)
ERIC MAURICE HARPER, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
_________________________________
Eric Harper pleaded guilty to distributing methamphetamine. In determining
the advisory sentencing-guidelines range, the district court classified Mr. Harper as a
career offender. Mr. Harper disputes his career-offender classification and seeks to
appeal. But his plea agreement included a broad waiver of his appellate rights, and
the government moves to enforce the waiver. We grant the motion.
We will enforce an appellate waiver if (1) “the disputed appeal falls within”
the waiver’s scope; (2) “the defendant knowingly and voluntarily waived his
appellate rights”; and (3) enforcing the waiver would not “result in a miscarriage of
*
This order and judgment is not binding precedent, except under the doctrines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.
justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(per curiam). Mr. Harper does not dispute that his appeal fits within the scope of his
waiver or that his waiver was knowing and voluntary. He contends only that
enforcing his waiver would result in a miscarriage of justice.
Enforcing an appeal waiver causes a miscarriage of justice if (1) “the district
court relied on an impermissible factor such as race”; (2) ineffective assistance of
counsel in negotiating the waiver renders it invalid; (3) “the sentence exceeds the
statutory maximum”; or (4) “the waiver is otherwise unlawful,” seriously affecting
the fairness, integrity, or public reputation of judicial proceedings. Id. at 1327(internal quotation marks omitted).
Mr. Harper contends that the district court’s alleged error in classifying him as
a career offender renders his waiver unlawful. Our precedent requires us to reject
this argument. At bottom, Mr. Harper alleges that the district court committed a legal
error when it calculated his sentencing-guidelines range. And our cases make clear
that the exception Mr. Harper invokes “looks to whether the waiver itself is unlawful,
not to whether another aspect of the proceeding may have involved legal error.”
United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (citation and internal
quotation marks omitted); see also United States v. Sandoval, 477 F.3d 1204, 1208
(10th Cir. 2007) (“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.”).
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Mr. Harper’s reading of Hahn does not persuade us otherwise. Mr. Harper
argues that Hahn looked “to the error alleged when analyzing the otherwise unlawful
factor.” Resp. at 6. But this argument relies on Part III.C of Hahn’s per curiam
opinion, “an opinion concurring in the result” that did not receive a majority of the
court’s votes. Hahn, 359 F.3d at 1318.
Our precedent is clear: “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.” Smith, 500 F.3d at 1213. Enforcing Mr. Harper’s
appellate waiver will not result in a miscarriage of justice.
We grant the government’s motion to enforce the appellate waiver and dismiss
this appeal.
Entered for the Court
Per Curiam
3