United States v. Brown ( 2021 )

Appellate Case: 21-3185 Document: 010110616045 Date Filed: 12/08/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 8, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-3185
(D.C. No. 5:19-CR-40081-TC-1)
ANTONIO SHANNON DONOVAN (D. Kan.)
BROWN,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MORITZ, and EID, Circuit Judges.
_________________________________
Antonio Brown 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). Brown,
through counsel, has filed an opposition. For the reasons explained below, we will
grant the government’s motion and dismiss this appeal.
A grand jury indicted Brown in August 2019 for various drug- and gun-related
offenses. In May 2021, Brown signed an agreement to plead guilty to a one-count
superseding information, charging him with using a communication facility to further
*
This order and judgment is not binding precedent, except under the doctrines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: 21-3185 Document: 010110616045 Date Filed: 12/08/2021 Page: 2
a felony controlled-substance offense, in violation of 21 U.S.C. § 843(b). In
exchange, the government agreed to dismiss the indictment. See Mot. for Enf’t of
Appeal Waiver (“Motion”), Attach. A ¶ 5(a). The government also agreed to
recommend a four-year prison sentence, id. ¶ 5(c), although that is the statutory
maximum, id. ¶ 1. The plea agreement warned Brown that the actual sentence
imposed was entirely up to the district court and “he will not be permitted to
withdraw his guilty plea” if the district court “imposes a sentence with which he does
not agree.” Id. ¶¶ 6, 8. Finally, as relevant here, Brown agreed to waive his appeal
rights:
The defendant knowingly and voluntarily waives any right
to appeal or collaterally attack any matter in connection
with this prosecution, his conviction, or the components of
the sentence to be imposed herein . . . . [T]he defendant
waives the right to appeal the sentence imposed in this
case, except to the extent, if any, the Court departs
upwards from the sentencing Guideline range that the
Court determines to be applicable.
Id. ¶ 10.
At the change-of-plea hearing, the district court conducted a thorough colloquy
with Brown, confirming that:
 he could receive a sentence of up to four years;
 the court was not bound by any sentencing recommendation;
 disappointment with the sentence imposed was not a basis for
withdrawing the plea;
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 he was giving up his appeal rights other than as stated in the plea
agreement; and
 he “had the opportunity to fully and sufficiently discuss with [his]
lawyer the impact that waiver . . . may have in [his] ability to
subsequently challenge any sentence imposed by [the] court,” Motion,
Attach. B (“Change-of-Plea Tr.”) at 30–31.
The court also obtained Brown’s admission that he committed the acts underlying the
criminal charge. The court therefore found that Brown intelligently and voluntarily
waived his rights, and it accepted the plea agreement.
In between the change-of-plea hearing and the sentencing hearing, Brown
moved to withdraw his plea, received new counsel, reconsidered, abandoned his
motion to withdraw, and went forward with sentencing. At the sentencing hearing,
the district court noted that the recommended sentence under the Sentencing
Guidelines would have been “quite significant[ly]” higher than four years but for that
being the statutory maximum. Motion, Attach. C at 20. But the court could not
sentence him to more than four years, so that became the Guidelines recommendation
by default.
The district court imposed the four-year maximum sentence, as recommended.
Brown then filed a timely notice of appeal, prompting the government to file the
motion now at issue.
1. 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
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at 1325. Brown does not argue otherwise, nor do we see a viable argument. The
appeal waiver explicitly embraces the sentence imposed, and the only exception (for
an above-Guidelines sentence) does not apply.
2. We next ask “whether the defendant knowingly and voluntarily waived his
appellate rights.” Id. Brown has three arguments here.
First, Brown claims “duress” because “his children were in foster care . . . .
He believed his guilty plea would result in a sentence which would allow him to be
released in time to prevent their adoption.” Def. Resp. to Mot. to Enforce Appeal
Waiver (“Response”) at 4 & n.1. Brown acknowledges these facts are “not a part of
the record.” Id. at 4 n.1
This appears to be an attack on his guilty plea generally, not on the appeal
waiver, but “if the defendant did not voluntarily enter into the agreement, the
appellate waiver subsumed in the agreement also cannot stand.” United States v.
Rollings, 751 F.3d 1183, 1189 (10th Cir. 2014). Even so, Brown does not ask to be
excused from his plea agreement (a course he abandoned below), but only from the
appeal waiver, showing that he wishes to attack the length of his sentence.
We reiterate that the plea agreement and the district court repeatedly warned
Brown that the sentence was in the court’s discretion and dissatisfaction with the
court’s eventual decision was not a basis to withdraw the plea. Moreover, Brown
knew that the government would recommend the four-year maximum sentence. And
we find one exchange between the court and Brown, although in the context of
establishing competency, to be equally relevant to duress:
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THE COURT: If I were to ask you whether you believe
you are mentally competent to enter into a significant
agreement that will affect you the rest of your life, what
would your answer be?
THE DEFENDANT: Yes.
Change-of-Plea Tr. at 9–10. We thus reject Brown’s duress argument.
Second, Brown notes that he signed the plea agreement on “the day of the
[change-of-plea] hearing,” so he “would argue that this is evidence that 21 months
into his case, he had only one day to consider the actual written plea agreement and
the consequences thereof.” Response at 5. But “[d]efendant bears the burden of
demonstrating [his] waiver was not knowing and voluntary.” United States v.
Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008). The equivocal phrasing and
conditionality of this argument (he “would argue that this is evidence” that “he had
only one day to consider the actual written plea agreement”) does not satisfy that
burden.
Third, Brown says “that while he understood that there was an appeal waiver,
he did not understand the full scope of that waiver and the impact it would have later
in the proceedings.” Id. at 6. But he does not explain how the appeal waiver, as
written, fails to convey its scope. Nor does he say that he failed to discuss the waiver
with his attorney. That would be contrary to his change-of-plea testimony anyway.
Cf. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
[at a change-of-plea hearing] carry a strong presumption of verity. The subsequent
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presentation of conclusory allegations unsupported by specifics is subject to
summary dismissal . . . .”).
We therefore reject Brown’s arguments that he unknowingly or involuntarily
waived his appeal rights.
3. Last, we ask “whether enforcing the waiver would result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325. In this context, “miscarriage of justice” means one
of four things: (1) “the district court relied on an impermissible factor such as race”;
(2) the defendant’s attorney rendered ineffective assistance “in connection with the
negotiation of the waiver”; (3) “the sentence exceeds the statutory maximum”; or
(4) the waiver represents an error that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. at 1327 (internal quotation marks
omitted).
Brown’s only miscarriage-of-justice argument is that “he was not given the
opportunity to assert his innocence.” Response at 7. Brown is incorrect. He had the
opportunity to go to trial. He chose to plead guilty instead. Also, he confirmed to
the district court that he committed the conduct underlying the criminal charge, so we
may summarily disregard his new, unsupported claim of innocence. See Blackledge,
supra.6
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In sum, we find this appeal falls within Brown’s appeal waiver and that no
Hahn factor counsels against enforcement of the waiver. We therefore grant the
government’s motion and dismiss this appeal.
Entered for the Court
Per Curiam
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