United States v. O'Neill , 438 F. App'x 661 ( 2011 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    August 23, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 11-3116
    v.                                         (D.C. No. 5:10-CR-40051-RDR-1)
    (D. Kan.)
    THOMAS CHRISTIAN O’NEILL,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before KELLY, EBEL, and MATHESON, Circuit Judges.
    The government moves to enforce the appeal waiver contained in the plea
    agreement it entered into with Thomas Christian O’Neill. We GRANT the
    motion.
    Mr. O’Neill pleaded guilty to distribution of fifty or more grams of
    methamphetamine in violation of 
    21 U.S.C. § 841
    (a)(1). Under the terms of the
    *
    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 This order and judgment is not binding precedent, except under the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. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
    10th Cir. R. 32.1.
    agreement, he waived his right to appeal the sentence imposed, if it was within
    the guideline range the district court determined to be appropriate and if it did not
    depart upwards from that range. The court sentenced Mr. O’Neill to 108 months
    of imprisonment, which was below the applicable guideline range of 151 to 188
    months of imprisonment. Despite the appeal waiver and the downward departure,
    Mr. O’Neill filed a notice of appeal.
    The government has moved to enforce the appeal waiver pursuant to United
    States v. Hahn, 
    359 F.3d 1315
     (10th Cir. 2004) (en banc) (per curiam). Hahn
    directs us “to 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.” 
    Id. at 1325
    . A miscarriage of justice
    occurs where (1) “the district court relied on an impermissible factor such as
    race”; (2) “ineffective assistance of counsel in connection with the negotiation of
    the waiver renders the waiver invalid”; (3) “the sentence exceeds the statutory
    maximum”; or (4) “the waiver is otherwise unlawful.” 
    Id. at 1327
     (internal
    quotation marks omitted). To satisfy the fourth factor, “the error [must] seriously
    affect[] the fairness, integrity or public reputation of judicial proceedings.” 
    Id.
    (internal quotation marks omitted).
    Mr. O’Neill’s arguments concern the scope of the waiver prong and the
    otherwise-unlawful aspect of the miscarriage of justice prong. He first contends
    -2-
    that if he is allowed to appeal he “would argue that the court improperly
    attributed drug amounts to [him] and applied an incorrect guideline range, and
    that the matter should be remanded for a lower sentence.” Resp. to Mot. to
    Enforce at 2. He contends this claim does not fall within the scope of the waiver
    because he did not know what the presentence investigation report would state
    and there was a risk that he would end up with more imprisonment time than he
    expected. He contends that “a waiver of appellate rights should not result in the
    coerced abandonment of all hope when a conclusion by the district court is simply
    not supported by the evidence, which [he] believes to be the case here.” 
    Id.
    Also, he asserts that the “waiver [did not] give the district court absolute power to
    determine all matters at sentencing without any hope of appellate review.” Id.
    at 3. 1
    Because Mr. O’Neill is raising sentencing issues, his appeal necessarily is
    within the scope of the waiver. Cf. United States v. Weeks, ___ F.3d ___,
    
    2011 WL 3452053
    , at *5 n.4 (10th Cir. Aug. 9, 2011) (agreeing with parties that
    “appeal [did] not fall within the scope of the waiver, because [appellant was]
    1
    Mr. O’Neill does not argue that he may appeal his below-the-guidelines
    sentence because it does not fall within the scope of the appeal waiver. If he had
    made this argument, we would reject it. The plea agreement states both that he
    waived any right to challenge a sentence within the guideline range determined
    appropriate by the district court and that he waived any right to appeal a sentence
    imposed that did not depart upwards from the applicable guideline range
    determined by the court. We conclude this language also forecloses an appeal of
    a sentence below the guideline range.
    -3-
    contesting the voluntariness of his plea, not raising sentencing issues”). To hold
    the appeal waiver does not encompass alleged sentencing errors “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), and would ignore the
    concession in the plea agreement that the applicable guideline range is the one the
    district court determines is appropriate.
    Additionally, Mr. O’Neill argues that it would be a miscarriage of justice to
    deny an appeal when the evidence that determines how many years of
    imprisonment a defendant will serve is truly in question. Presumably, this
    argument relates to the waiver being otherwise unlawful, because none of the
    other three circumstances identified under the miscarriage-of-justice prong seem
    to be called into question. See Hahn, 
    359 F.3d at 1327
    . This exception to
    enforcing the appeal waiver “looks to whether the waiver is otherwise unlawful,
    not to whether another aspect of the proceeding may have involved legal error.”
    Smith, 
    500 F.3d at 1213
     (citation omitted) (internal quotation marks omitted).
    Mr. O’Neill’s argument that the alleged errors in the district court’s sentencing
    procedure should invalidate his appellate waiver “illustrates what Hahn called
    ‘the logical failing[] of focusing on the result of the proceeding, rather than on
    the right relinquished, in analyzing whether an appeal waiver is [valid].’” 
    Id.
    (quoting Hahn, 
    359 F.3d at
    1326 n.12 (addressing knowingness and voluntariness
    of appeal waiver)). Mr. O’Neill therefore cannot show a miscarriage of justice.
    -4-
    Accordingly, the government’s motion to enforce is GRANTED, and this
    appeal is DISMISSED.
    ENTERED FOR THE COURT
    PER CURIAM
    -5-
    

Document Info

Docket Number: 11-3116

Citation Numbers: 438 F. App'x 661

Judges: Ebel, Kelly, Matheson, Per Curiam

Filed Date: 8/23/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023