United States v. Brown ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-8126
v. (D.C. No. 96-CR-41-02J)
(District of Wyoming)
CALVIN BROWN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
Calvin Brown accepted a plea agreement and pleaded guilty to one count of
conspiracy to possess with intent to distribute cocaine base, 21 U.S.C. § 846 and
21 U.S.C. § 841. He was sentenced to sixty-three months’ imprisonment and now
appeals his sentence.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
In Brown’s plea agreement, however, he waived his right to appeal his
sentence. Paragraph 14 of the plea agreement states: “The Defendant agrees to
waive his right to appeal the sentence he receives as a result of this Plea
Agreement. However, if the United States appeals the Defendant’s sentence
pursuant to 18 U.S.C. § 3742(B), the Defendant is released from his waiver.” The
court directed Brown’s attention to this provision during his change of plea
hearing and Brown acknowledged the waiver. (Plea Tr. at 14-15.) 1 On appeal
Brown does not allege that his acceptance of the waiver provision was unknowing
or involuntary, does not challenge the plea agreement, and does not attempt to
explain why the waiver provision should not be upheld.
1
The plea colloquy contained the following dialogue between Brown and the
court:
Court: Both you and the government under certain circumstances may be
able to appeal a sentence imposed by the Court. You have waived
your right to appeal in this plea agreement. However, if you have
waived and you’ve entered into a plea agreement which waives
some or all of your rights to appeal the sentence itself, I need to tell
you that such waivers have generally been upheld in the appellate
Court and would be upheld against you. But if you believe the
waiver is unenforceable, you, of course, are free to present that
theory to the appellate court and get a ruling and tell them whatever
circumstances that you feel would apply to your particular case.
Brown: Yes, sir, Your Honor.
Court: Do you understand that by entering a plea of guilty you will have
waived or given up your right to appeal all or part of this sentence?
Brown: Yes, sir, Your Honor.
(Plea Tr. at 14-15.)
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We find no reason not to hold Brown to his negotiated plea agreement. The
United States has not appealed Brown’s sentence, and consequently by the plain
terms of his plea agreement Brown has waived his right to appeal. The appeal is
DISMISSED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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