United States v. Fisher , 805 F.3d 982 ( 2015 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 10, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-3257
JEROLD D. FISHER,
Defendant - Appellant.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 5:13-CR-40035-JAR-1)
_________________________________
Timothy J. Henry, Assistant Federal Public Defender (Melody Brannon Evans, Federal
Public Defender, with her on the briefs), Office of the Federal Public Defender for the
District of Kansas, Wichita, Kansas, appearing for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Office of the United States Attorney for the District of
Kansas, Topeka, Kansas, appearing for Plaintiff-Appellee.
_________________________________
Before LUCERO, HOLMES, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Jerold D. Fisher entered a plea agreement and pled guilty to submitting fraudulent
tax returns to the Internal Revenue Service. In return, the Government promised, among
other things, not to charge Mr. Fisher with any further crimes arising out of the same
underlying conduct. Following the plea agreement and before sentencing, the district
court found Mr. Fisher had breached the plea agreement and released the Government
from its no-new-charges obligation. The Government then indicted Mr. Fisher on related
structuring charges. The court subsequently reversed itself and reinstated the plea
agreement, but the Government did not dismiss the new indictment.
At sentencing on the tax fraud charge, Mr. Fisher asked the district court to find
that the Government (1) had breached the plea agreement by failing to dismiss the
structuring charges, and (2) had engaged in vindictive prosecution. The court sentenced
Mr. Fisher to 41 months in prison without ruling on either of those requests.
Mr. Fisher now appeals, arguing the district court committed procedural error by
declining to decide his governmental breach claim. Because that claim is moot, we lack
jurisdiction over it. To the extent Mr. Fisher attempts to raise a similar argument
regarding his vindictive prosecution claim, he has forfeited that claim and waived it
through inadequate briefing. We therefore grant the Government’s motion to dismiss this
appeal.
I. BACKGROUND
1. The Original Indictment and Plea Agreement
On May 1, 2013, a federal grand jury indicted Mr. Fisher on two counts of
violating 18 U.S.C. § 287, which prohibits knowingly presenting “false, fictitious, or
fraudulent” claims to any agency or department of the United States. According to the
indictment, Mr. Fisher filed false Forms W-2 purporting to show that Fisher Alfalfa
Farms, of which he claimed to be the registered agent, had paid him $8,877,934 in wages
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and withheld $3,997,436 in employment taxes for tax years 2006 through 2009. He also
allegedly submitted fraudulent Forms 1040 for himself. Based on these fabricated
documents, the U.S. Treasury sent him checks and electronic transfers totaling
$3,866,021.
On February 14, 2014, Mr. Fisher and the Government entered into a plea
agreement, under which the Government dismissed Count 1 in return for a guilty plea to
Count 2. Mr. Fisher’s promises in the plea agreement included the following:
c. The defendant agrees to fully and completely assist the
United States in the identification and recovery of forfeitable assets, either
domestic or foreign, which have been acquired directly or indirectly
through the unlawful activities of the defendant.
d. The defendant agrees to cooperate fully with the United
States Attorneys Office and to provide a financial statement on a form
approved by the USAO that discloses all assets in which defendant has any
interest or over which the defendant exercises control, directly or indirectly,
including those held by a spouse, nominee or other third party, as well as
any transfer of assets that has taken place in the last 5 years.
e. The defendant agrees to submit to an examination, which may
be taken under oath and may include a polygraph examination.
....
g. The defendant agrees to not encumber, transfer, or dispose of
any monies, property or assets under defendant’s custody or control,
without written approval from the United States Attorneys Office.
ROA, Vol. 1 at 48-49. In return, the Government agreed (1) not to “file any additional
charges against the defendant, or any one acting in concert with the defendant, arising out
of the facts forming the basis for the present indictment,” (2) to recommend a sentence of
36 months, and (3) to recommend a two- or three-level reduction for acceptance of
responsibility under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3E1.1.
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ROA, Vol. 1 at 52. These obligations were “contingent upon the defendant’s continuing
manifestation of acceptance of responsibility as determined by the United States”:
In the event the Court finds the defendant has breached this plea agreement
or otherwise failed to adhere to its terms, the United States shall not be
bound by this paragraph and may pursue any additional charges arising
from the criminal activity under investigation as well as any perjury, false
statement, or obstruction of justice charges which may have occurred.
ROA, Vol. 1 at 52-53. The Government also bound itself “not to use new information
the defendant provides about the defendant’s own criminal conduct except as specifically
authorized by U.S.S.G. § 1B1.8,” which permits the use of “self-incriminating
information” against a cooperating defendant in limited circumstances. ROA, Vol. 1 at
53; U.S. Sentencing Guidelines Manual § 1B1.8 (U.S. Sentencing Comm’n 2014).
Finally, the plea agreement contained a waiver of Mr. Fisher’s right to “appeal or
collaterally attack any matter in connection with this prosecution, [his] conviction, or the
components of the sentence to be imposed.” ROA, Vol. 1 at 55. The waiver contained
an exception that permitted Mr. Fisher to bring “claims with regards to ineffective
assistance of counsel or prosecutorial misconduct.” ROA, Vol. 1 at 56.
2. Initial Sentencing Hearing
As provided by the plea agreement, the Government deposed Mr. Fisher on May
6, 2014. On May 27, 2014, the district court conducted a brief sentencing hearing, at
which neither party objected to the presentence report. The district court calculated the
Guidelines range as 41 to 51 months and announced that it tentatively intended to impose
the 36-month sentence jointly recommended by the parties. After explaining its reasons
for that sentence, however, the court asked the Government how much of Mr. Fisher’s
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unlawfully obtained money had been recovered. The Government responded that despite
making “diligent efforts to try to locate assets,” it had only “recovered a fraction of the $4
million.” ROA, Vol. 3 at 11-12.
Unconvinced that the stolen funds were “gone to the wind,” the district court
continued the sentencing to give Mr. Fisher an opportunity to “think about it some more
and think about maybe there’s some other information he might be able to offer.” ROA,
Vol. 3 at 13. “[A]s it stands right now,” the court explained, “I’m not willing, without
any further explanation, to honor the parties’ agreement to sentence Mr. Fisher to under
the guideline range. I’m just not. Not with this amount of loss.” ROA, Vol. 3 at 13-14.
Mr. Fisher, as he was being led from the courtroom, exclaimed to the court, “Three
million was lost in the stock market. They know that.” ROA, Vol. 3 at 15.
3. Government’s Motion to Find Mr. Fisher in Breach of the Plea Agreement
The Government subsequently filed a Motion to Determine If Defendant Has
Breached His Plea Agreement. The Government sought to be released from paragraph 5
of the agreement—which concerns the filing of additional charges, Mr. Fisher’s
recommended sentence, and acceptance of responsibility—on the ground that Mr. Fisher
had not manifested acceptance of responsibility. In particular, the Government claimed
that Mr. Fisher “ha[d] obfuscated on the issue of his assets and ha[d] failed to provide
documentation, as requested, to establish that he lost $3,000,000 in the stock market as he
represented to the Court in his aborted sentencing hearing on May 27, 2014.” ROA, Vol.
1 at 99. The Government also alleged “Fisher ha[d] been trying to get assistance from
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one or more fellow inmates at [Corrections Corporation of America] to help him move
money that he ha[d] under his control covertly.” ROA, Vol. 1 at 99-100.
4. Second Sentencing Hearing
At a second sentencing hearing on July 7, 2014, the Government presented
testimony from IRS Special Agent Lamont Wynn. Special Agent Wynn made allegations
against Mr. Fisher based on information from Mr. Fisher’s fellow inmate who was a
cooperating witness in a different case.
First, Special Agent Wynn testified that according to the informant, Mr. Fisher had
been making phone calls using other prisoners’ personal identification numbers (PINs) to
prevent Government monitoring of his calls. The informant had reported that on one
such call, Mr. Fisher instructed his girlfriend, Renita Lewis, to sell weight-lifting
equipment he had purchased with tax fraud proceeds. Second, Special Agent Wynn
claimed Mr. Fisher had been tutoring other inmates on how to obtain tax refunds, both
legally and illegally.
5. Third Sentencing Hearing
At a third sentencing hearing on July 28, 2014, the Government submitted a
transcript of a May 9, 2014 phone call Mr. Fisher placed to Ms. Lewis, using another
prisoner’s PIN. Mr. Fisher started that call by telling Ms. Lewis, “Twelve with one of the
long things,” then spoke in what appears to be code for several minutes, ROA, Ex. 1, to
disguise, the Government argued, his efforts to dispose of assets through Ms. Lewis. At
the end of the call, Mr. Fisher said if his family did not pay a $350 outstanding warrant
for his arrest,
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well they will see what $350 will cost them. It’s going to cost
motherfucking farm ground and five years in jail I can put them all away,
there, so that’s fine with me. I’m not going to do any more time for their
stupidity and everything and their bullshit and stuff.
ROA, Vol. 4 at 3. The Government claimed Mr. Fisher was threatening to turn his
relatives in to the Government if they did not assist him with the warrant. According to
the Government, Mr. Fisher’s threats suggested he and his family had been attempting to
dispose of assets without the Government’s knowledge.
6. District Court Finds Mr. Fisher Breached the Plea Agreement
On August 27, 2014, the district court granted the Government’s motion to find
Mr. Fisher in breach, concluding he “ha[d] failed to fully and honestly identify and
disclose the location and or disposition of assets and property derived from the offense,
only providing limited information of questionable credibility when pressed.” ROA, Vol.
1 at 330. Specifically, the court found Mr. Fisher had withheld all information about his
stock market losses until after the May 27, 2014 sentencing hearing, failed to disclose
that family members possessed some of his assets, and attempted to dispose of other
assets through Ms. Lewis without the Government’s knowledge. Because it concluded
Mr. Fisher had breached, the court released the Government from several of its
obligations under the plea agreement, including its promise not to file new charges
against Mr. Fisher.
7. New Charges Against Mr. Fisher and Ms. Lewis
On September 24, 2014, the Government indicted Mr. Fisher and Ms. Lewis on
seven counts of structuring, in violation of 31 U.S.C. § 5324(a)(3). The indictment
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recited the facts of Mr. Fisher’s first case, including his submission of fraudulent tax
returns and his agreement to plead guilty on February 14, 2014. It further alleged that
Mr. Fisher and Ms. Lewis deposited his illegal tax proceeds into various bank accounts in
a manner designed to “evad[e] the reporting requirements” that federal law imposes on
financial institutions. Aplt. Br., Attach. C at 4-10; 31 U.S.C. § 5324(a).
The Government was free to seek this second indictment because the district
court’s August 27, 2014 order lifted the restrictions imposed by paragraph five of the plea
agreement. That order was based on the court’s belief that it was “not until the May 27
sentencing hearing [that] Defendant offer[ed], in an excited utterance as he left [the]
courtroom, that he had lost monies in the stock market.” ROA, Vol. 1 at 341. “And, in
the aftermath of the May 27 hearing,” the court explained in its order, “Defendant for the
first time produced records of stock market transactions that identified and quantified a
net loss of $1.9 million in the stock market.” ROA, Vol. 1 at 341.
It turned out, however, that the district court was in error: both parties agree on
appeal that the Government had been in possession of records from Mr. Fisher’s E*Trade
accounts since 2010, and that those records show stock market losses of between $1.9
million and $2.2 million.
8. Mr. Fisher Moves for Reconsideration
Given the district court’s factual misunderstanding, on September 30, 2014, Mr.
Fisher moved for reconsideration of the August 27 order. On October 28, 2014, the court
granted Mr. Fisher’s motion. The court found that as a result of poor briefing from both
parties, “[i]t was not made clear to the Court when deciding whether Defendant breached
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the Plea Agreement that the records [of Mr. Fisher’s E*Trade accounts] were provided
before May 27.” ROA, Vol. 1 at 1457. Because the Government had in fact possessed
those records before executing the plea agreement, the court concluded Mr. Fisher had
not breached and “the Government continues to be bound by the terms of the Plea
Agreement at sentencing.” ROA, Vol. 1 at 1460.
9. Motion for Variance
Mr. Fisher filed a Motion for a Guideline Variance to a Sentence of Time Served
on November 3, 2014. He argued the Government had breached the plea agreement by
filing a new indictment based in part on evidence obtained during Mr. Fisher’s May 6,
2014 deposition. As a remedy for this breach, Mr. Fisher sought only to be relieved of
his obligations under paragraphs 1(c)-(g) of the plea agreement, which required him to
cooperate with the Government in disclosing and recovering assets.
In addition, Mr. Fisher’s motion accused the Government of engaging in
vindictive prosecution. He alleged, in particular, that the Government had brought the
structuring charges to punish Mr. Fisher for refusing to plead guilty in a 2012 case; the
Government had continued to investigate Mr. Fisher, even prior to his alleged breach of
the tax fraud plea agreement, because it intended all along to obtain an additional
indictment against him; and during his deposition, the Government had attempted to trick
Mr. Fisher into lying so that it could bring perjury charges against him. The sole remedy
he sought for the alleged prosecutorial vindictiveness was a sentence of time served.
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10. Fourth and Final Sentencing Hearing
The district court held its fourth and final sentencing hearing on November 3,
2014. At that hearing, the court said the arguments raised in Mr. Fisher’s motion for
variance affected only the structuring case against Mr. Fisher, not the instant tax fraud
case, and that Mr. Fisher should therefore raise those concerns only in the second case,
which was before a different judge.
The Government announced it did not intend to seek Mr. Fisher’s cooperation
going forward. The court agreed that once a sentence was handed down in the tax fraud
case, the Government could not seek to enforce paragraphs 1(c)-(g) of the plea
agreement.
The district court imposed a sentence of 41 months in prison followed by three
years of supervised release, as well as $4,039,781 in restitution to the IRS. When defense
counsel inquired whether Mr. Fisher’s vindictive-prosecution claim had factored into the
final sentence, the court responded:
I decided it would be more appropriate in the other case. I don’t think I
have sufficient evidence to grant a variance on that basis. I think it’s more
appropriately taken up in the other case where it can be fully heard. And I
think the appropriate remedy could be had in that case, everything from
dismissal to remedies short of that.
ROA, Vol. 3 at 142-43.
On November 4, 2014, the day after the final sentencing hearing, the Government
moved to dismiss the structuring charges against Mr. Fisher and Ms. Lewis.
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11. Mr. Fisher’s Appeal
Mr. Fisher filed a timely notice of appeal on November 12, 2014. On December
10, 2014, the Government moved to enforce Mr. Fisher’s appeal waiver under 10th
Circuit Rule 27.2(A)(1)(d). The Government’s motion also sought dismissal of the
appeal under 10th Circuit Rule 27.2(A)(1)(b), which provides for “summary disposition
because of a supervening change of law or mootness.” After Mr. Fisher responded, his
appeal was referred to this panel.
II. DISCUSSION
Mr. Fisher made two arguments in his motion for variance and at the sentencing
hearing before the district court. First, he argued the Government had breached the plea
agreement. On appeal, he argues the district court erred when it declined to rule on this
issue. The problem with this argument is that Mr. Fisher has already obtained all the
relief he requested for the Government’s alleged breach, rendering that issue moot.
Accordingly, we grant the Government’s motion to dismiss the breach issue as moot.
Second, Mr. Fisher argued in district court that he should be sentenced to time
served because the Government engaged in vindictive prosecution. On appeal, although
he may, as with his breach issue, be alleging the district court erred by refusing to decide
this issue, he has failed to brief it adequately. We therefore do not consider it.
A. Government Breach Claim Is Moot
Mr. Fisher contends the district court erred by failing to rule on his request to find
the Government in breach of the plea agreement for failing to dismiss the second
indictment before he was sentenced. He argues the “Government’s breach of its plea
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agreement obligations requires remand for resentencing before a different judge.” Aplt.
Br. at 22.
We may reach the merits of Mr. Fisher’s appeal only if (1) Mr. Fisher’s appeal
waiver is unenforceable, and (2) his claims are not moot. “The mootness question
necessarily constitutes our threshold inquiry, because the existence of a live case or
controversy is a constitutional prerequisite to the jurisdiction of the federal courts.” In re
L.F. Jennings Oil Co., 4 F.3d 887, 889 (10th Cir. 1993) (quotation omitted). We review
mootness de novo as a legal question. Id.
1. Mootness Standard
“Article III of the United States Constitution limits the jurisdiction of federal
courts to the adjudication of ‘Cases’ or ‘Controversies.’” Jordan v. Sosa, 654 F.3d 1012,
1019 (10th Cir. 2011) (quoting U.S. Const. art. III, § 2, cl. 1). This case-or-controversy
limitation requires that parties continue to have a personal stake in the outcome of a
lawsuit during all stages of litigation, including appellate review. See United States v.
Juvenile Male, 131 S. Ct. 2860, 2864 (2011); Spencer v. Kemna, 523 U.S. 1, 7 (1998); S.
Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (“Article III mootness
is ‘the doctrine of standing set in a time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its
existence (mootness).’” (quoting Arizonans for Official English v. Arizona, 520 U.S. 43,
68 n.22 (1997))).
“We have held a case or controversy no longer exists when it is impossible to
grant any effectual relief.” Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884,
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891 (10th Cir. 2008); see also S. Utah Wilderness All., 110 F.3d at 727 (“[T]o be
cognizable, a suit must be ‘a real and specific controversy admitting of specific relief
through a decree of a conclusive character.’” (quoting Preiser v. Newkirk, 422 U.S. 395,
401 (1975))). A claim is moot if a party has already obtained the only relief it seeks. See
S. Utah Wilderness All., 110 F.3d at 727 (affirming district court’s finding that case was
moot where “the only relief sought . . . has already been obtained”).
2. Analysis
Mr. Fisher’s claim for government breach of the plea agreement is moot. He has
already received all the relief he requested for that alleged breach.
Federal Rule of Criminal Procedure 32(i)(3)(B) provides that “[a]t sentencing, the
court . . . must—for any disputed portion of the presentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either because the
matter will not affect sentencing, or because the court will not consider the matter in
sentencing.” Mr. Fisher contends the court violated this rule when it declined to decide
his “disputed” motion to find the Government had breached the plea agreement and
instead determined the alleged governmental breach should be addressed in his
structuring case.
This claim is moot because, even if the district court erred in declining to decide
this issue, or even if the court had determined the Government had breached the plea
agreement, Mr. Fisher received everything he requested by way of relief. He asked the
district court only for release from paragraphs 1(c)-(g) of the plea agreement, which
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concern his cooperation obligations, as the sole remedy for the Government’s alleged
breach.1
At the sentencing hearing, Mr. Fisher obtained release from his cooperation
obligations. The prosecutor announced that the Government had “no intention of asking
[Mr. Fisher] to cooperate any further” and that it “d[id] not intend to take his deposition,
[and] d[id] not intend for him to provide any more information.” ROA, Vol. 3 at 126.
Although the parties did not execute any formal amendment of the plea agreement to
clarify that Mr. Fisher’s duty to cooperate terminated with the entry of judgment, the
entirety of the transcript indicates that it did. The district court confirmed this
interpretation when it told defense counsel that the Government had “conceded that they
are no longer able to enforce any obligation on Mr. Fisher’s part to continue to cooperate
in the identification and recovery of assets.” ROA, Vol. 3 at 132 (116:19-22).
Mr. Fisher has obtained “the only relief [he] sought” for the Government’s alleged
breach of the plea agreement. S. Utah Wilderness All., 110 F.3d at 727. That relief
renders his breach claim moot and divests us of subject matter jurisdiction over the
breach issue. Id. Accordingly, we have neither the need nor the authority to decide
whether Mr. Fisher has waived his right to bring this appeal on the breach claim or
whether his claim is meritorious.
1
The motion containing that request also sought a sentence of time served. But
Mr. Fisher requested time served only as a remedy for the Government’s alleged
prosecutorial vindictiveness—not as a remedy for breach of the plea agreement. We
address the vindictive prosecution part of his motion below.
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B. Vindictive Prosecution Claim Was Waived and Forfeited
We do not consider Mr. Fisher’s vindictive prosecution claim because he has
waived it through inadequate briefing. In any event, this claim also was forfeited in
district court.2
1. Mr. Fisher Waived His Vindictive Prosecution Claim
a. Requirement to Present Arguments in the Opening Brief
We have said that the “first task of an appellant is to explain to us why the district
court’s decision was wrong.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th
Cir. 2015). We cannot rule on those issues the appellant does not bring to our attention.
For this reason, 10th Circuit Rule 28(a)(8) instructs that the “appellant’s brief must
contain, under appropriate headings and in the order indicated . . . appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.”
2
The Government argues in its motion to dismiss that Mr. Fisher’s Rule 32
vindictive prosecution claim is moot because it “stem[med] from the filing of the new
indictment in the new case,” which was subsequently dismissed. Doc. 10231156 at 10-
11. We ordinarily decide subject matter jurisdiction questions such as mootness before
addressing other issues. See Smith v. Rail Link, Inc., 697 F.3d 1304, 1313 (10th Cir.
2012). But “[f]ederal courts may choose to avoid difficult subject matter jurisdiction
questions and dispose of a case on a ‘threshold, nonmerits issue,’ . . . so long as resolving
the issue ‘does not entail any assumption by the court of substantive law-declaring
power.’” Valenzuela v. Silversmith, 699 F.3d 1199, 1205 (10th Cir. 2012) (quoting
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 433, 436 (2007)). Here,
deciding Mr. Fisher’s vindictive prosecution claim on the basis of inadequate briefing
and forfeiture resolves a “nonmerits issue” that “does not entail any assumption . . . of
substantive law-declaring power.” We may therefore pass over the question of whether
the Government mooted that claim by dismissing the structuring charges against Mr.
Fisher.
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“Consistent with this requirement, we routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s opening
brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). The latter half of this
formulation is as important as the former. While the “omission of an issue in an opening
brief generally forfeits appellate consideration of that issue,” Kitchen v. Herbert, 755
F.3d 1193, 1208 (10th Cir. 2014) (quotation omitted), it is equally true that an “issue
mentioned in a brief on appeal, but not addressed, is waived,” Utah Envtl. Cong. v.
Bosworth, 439 F.3d 1184, 1194 n.2 (10th Cir. 2006); see also Muscogee (Creek) Nation
v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (“[I]ssues designated for review are lost if
they are not actually argued in the party’s brief.” (quotation omitted)). And the appellant
must present his claims in a way that does not compel us to scavenge through his brief for
traces of argument. See Nixon, 784 F.3d at 1370 (declining to address an argument in
part because it was “misleadingly placed under a heading for a different issue”).
b. Analysis
In district court, Mr. Fisher claimed vindictive prosecution at the same time he
moved to find the Government in breach of the plea agreement. The portion of his
opening appeal brief that addresses Rule 32, however, only argues that the district court
erroneously failed to rule on his government breach claim. There is no argument the
district court also violated Rule 32 by sidestepping a ruling on his vindictive prosecution
claim. See Aplt. Br. at 23 (“Clearly, raising governmental breach of the present plea
agreement needs to be resolved prior to sentencing.”), 24 (“The issue raised here, breach
of a plea agreement, is not trivial, and required a ruling from the district court.”).
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Read generously, several stray sentences elsewhere in Mr. Fisher’s brief could be
construed to present an argument that the district court should have ruled on his
vindictive prosecution claim. See, e.g., Aplt. Br. at 24-25 (“The district court’s error in
this case stems from its erroneous belief that sentencing Fisher would moot the
underlying obligations of the plea agreement, and that issues of vindictive prosecution
and breach of the plea agreement by the Government didn’t have to be decided for
purposes of this sentencing, but simply in the new indictment’s case before a different
judge.” (emphasis in original)). But these scattered sentences fail to comply with 10th
Circuit Rule 28(a)(8) because they do not “contain, under appropriate headings and in the
order indicated . . . appellant’s contentions and the reasons for them.” We therefore need
not consider a Rule 32 argument regarding Mr. Fisher’s vindictive prosecution claim.
See Bronson v. Swensen, 500 F.3d at 1104.
Language in Mr. Fisher’s reply brief could be construed as an argument that the
district court violated Rule 32 when it declined to rule on his vindictive prosecution
claim. See Aplt. Reply Br. at 12 (disputing Government’s assertion that “defense trial
counsel . . . fail[ed] to object to the district court’s ruling that it was deferring the
prosecutorial vindictiveness claim to the new case and court”). But this language does
not present Mr. Fisher’s “contentions and the reasons for them” any more clearly than his
opening brief. Mr. Fisher’s Rule 32 vindictive prosecution claim is not properly before
us, and we do not consider it.
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2. Mr. Fisher Forfeited His Vindictive Prosecution Claim in District Court
Mr. Fisher also forfeited his Rule 32 vindictive prosecution argument because he
did not object to the lack of a Rule 32 ruling in the district court and does not argue for
plain error on appeal. If a defendant “ha[s] not raised a separate objection to the district
court’s failure to make an appropriate finding under [. . . Rule 32(i)(3)(B)], our review
[i]s limited to determining whether this alleged failure to make a specific finding
amounted to plain error.” United States v. Warren, 737 F.3d 1278, 1284 (10th Cir. 2013)
(second brackets in original) (internal quotation marks omitted). “[T]he failure to argue
for plain error and its application on appeal . . . surely marks the end of the road for an
argument for reversal not first presented to the district court.” United States v. Lamirand,
669 F.3d 1091, 1099 n.7 (10th Cir. 2012) (ellipsis in original) (quotation omitted). Mr.
Fisher never invoked Rule 32 before the district court. It was therefore Mr. Fisher’s
burden to argue in his opening brief that the district court committed plain error. He
failed to do so.
III. CONCLUSION
Based on the foregoing, we grant the Government’s motion to dismiss Mr.
Fisher’s claim regarding breach of the plea agreement and affirm his sentence. We deny
the Government’s motion to enforce the appeal waiver as moot.
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