United States v. Phillips ( 2022 )

Appellate Case: 21-6108 Document: 010110647120 Date Filed: 02/18/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 18, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6108
(D.C. No. 5:18-CR-00260-SLP-51)
RYAN PHILLIPS, a/k/a Spartan, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, MORITZ, and CARSON, Circuit Judges.
_________________________________
Ryan Phillips has appealed from his sentence despite the appeal waiver in his
plea agreement. The government now moves to enforce that waiver under United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
Phillips’s counsel responds that he is aware of no non-frivolous argument for
overcoming the waiver and he has moved to withdraw. See Anders v. California,
386 U.S. 738, 744 (1967). We gave Phillips an opportunity to file a pro se response,
which he did. For the reasons explained below, we will grant the government’s
motion to enforce the appeal waiver, grant counsel’s motion to withdraw, and dismiss
this appeal.
*
This order and judgment is not binding precedent, except under the doctrines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: 21-6108 Document: 010110647120 Date Filed: 02/18/2022 Page: 2
In December 2018, a grand jury in the Western District of Oklahoma indicted
Phillips on various counts related to firearms and controlled substances. Phillips
agreed to plead guilty to two of those counts: (1) possessing, with intent to distribute,
500 grams or more of methamphetamine, and (2) possessing a firearm despite a
previous felony conviction. He further agreed to waive his “right to appeal [his]
sentence as imposed by the Court, including . . . the manner in which the sentence is
determined.” Mot. to Enforce Appellate Waiver, Attach. 1 (“Plea Agreement”)
¶ 21(b). The waiver included an exception, however, permitting an appeal of “the
substantive reasonableness of [his] sentence” if the district court imposed a sentence
“above the advisory Guidelines range determined by the Court to apply to
Defendant’s case.” Id.At the change-of-plea hearing, the district court conducted a thorough colloquy
with Phillips. Phillips in turn asked questions, including to confirm that he could still
appeal if the district court imposed an above-Guidelines sentence. Based on all this,
the district court found that Phillips intelligently and voluntarily waived the rights he
was giving up through his plea agreement. The district court therefore accepted the
agreement.
At sentencing, the district court sentenced Phillips to 204 months on the
methamphetamine charge and 120 months on the firearms charge, to be served
concurrently. This sentence was not above the advisory Guidelines range determined
by the court to apply to Phillips’s case.
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Our first question when faced with a motion to enforce an appeal waiver is
“whether the disputed appeal falls within the scope of the waiver.” Hahn, 359 F.3d
at 1325. In his pro se response, Phillips points out that his Guidelines criminal
history calculation went up by eight points based on the actual amount of
methamphetamine involved (he says the court accepted 3,000 grams as the proper
calculation) and the number of firearms involved (three). He compares this to the
charges to which he pleaded—possessing 500 grams or more of methamphetamine
and illegally possessing (apparently) a single firearm—and asks, “Does the plea
waiver still hold even though I was sentenced outside of my plea agre[e]ment?”
Letter dated Feb. 3, 2022, at 1.
Phillips was not sentenced outside of his plea agreement. The agreement
contains no representations about Guidelines calculations other than the
government’s agreement that Phillips deserved certain downward adjustments for
acceptance of responsibility. The agreement explicitly states that the government
“reserves the right to inform the United States Probation Office and the Court of the
nature and extent of Defendant’s activities with respect to this case and all other
activities of Defendant that the United States deems relevant to sentencing.” Plea
Agreement ¶ 27. The parties also stipulated that “the amount of actual
methamphetamine associated with Defendant’s relevant conduct in this case is 2,950
grams,” id. ¶ 19, which appears to be what Phillips has in mind when he says that the
court made its Guidelines calculation based on 3,000 grams. The agreement contains
no similar stipulation to three guns, but Phillips withdrew an objection to the
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Appellate Case: 21-6108 Document: 010110647120 Date Filed: 02/18/2022 Page: 4
presentence report’s relevant calculation, stating (through counsel) “one firearm,
three, it doesn’t matter.” R. vol. III at 5.
In any event, Phillips’s appeal waiver “encompasses all appellate challenges to
the sentence other than those falling within the explicit exception for challenges to
upward departures.” United States v. Smith, 500 F.3d 1206, 1210 (10th Cir. 2007).
The district court did not depart upward, so any other argument (such as about
Guidelines calculations) “clearly fall[s] within the scope of the waiver.” Id. Indeed,
Phillips explicitly gave up his right to appeal “the manner in which the sentence is
determined.” Plea Agreement ¶ 21(b).
We have independently reviewed the record and have found no other potential
bases for avoiding the appeal waiver. Accordingly, we find that this appeal falls
within the scope of the waiver.
Normally, we would go on to inquire “whether the defendant knowingly and
voluntarily waived his appellate rights” and “whether enforcing the waiver would
result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. But we need not address
a Hahn factor that the defendant does not dispute, see United States v. Porter,
405 F.3d 1136, 1143 (10th Cir. 2005), and Phillips does not raise any argument as to
these factors. We deem him to concede that his waiver was knowing and voluntary
and enforcing it would not result in a miscarriage of justice.
In sum, we find this appeal falls within Phillips’s appeal waiver and no other
Hahn factor counsels against enforcement of the waiver. We therefore grant the
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government’s motion to enforce the waiver, grant Phillips’s counsel’s motion to
withdraw, and dismiss this appeal.
Entered for the Court
Per Curiam
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