United States v. Rabieh , 259 F. App'x 143 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 20, 2007
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-6215
(D.C. No. 07-CR-00058-C-2)
MICHAEL DUANE RABIEH, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.
Defendant Michael Duane Rabieh pleaded guilty, pursuant to a plea
agreement, to one count of distribution of a quantity of methamphetamine in
violation of 21 U.S.C. § 841(b)(1)(C). The district court sentenced Mr. Rabieh to
151 months’ imprisonment, five years’ supervised release, and the payment of a
$100 special assessment. This sentence was at the bottom of the 151 to 188
*
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 This order and judgment is not binding precedent, except under the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.
month advisory guideline range determined by the district court. Mr. Rabieh filed
an appeal, even though he agreed in his plea agreement to waive his right to
appeal if his sentence was “within or below the advisory guideline range
determined by the [c]ourt.” Mot. to Enforce, Ex. 2 (Plea Agrmt.) at 6. The
government has moved to enforce the plea agreement under United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the
government’s motion and dismiss the appeal.
In Hahn, 359 F.3d at 1325, this court held that “in reviewing appeals
brought after a defendant has entered into an appeal waiver,” this court will
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.” A miscarriage of justice will result if (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 (quotation omitted).
Mr. Rabieh contends that the motion to enforce should be denied because
he did not knowingly and voluntarily waive his appellate rights because (1) he
was not advised that he would be sentenced as a career offender, and (2) the
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district court relied on an impermissible factor when it characterized his prior
crime of larceny as a crime of violence. Resp. to Mot. to Enforce, at 2-3.
In determining whether Mr. Rabieh’s waiver of his right to appeal was
made knowingly and voluntarily, we consider “whether the language of the plea
agreement states that [he] entered the agreement knowingly and voluntarily” and
whether there was “an adequate Federal Rule of Civil Procedure 11 colloquy.”
Hahn, 359 F.3d at 1325. Mr. Rabieh bears the “burden to present evidence from
the record establishing that he did not understand the waiver.” Id. at 1329(quotation omitted).
Mr. Rabieh fails to meet his burden. The plea agreement stated that
Mr. Rabieh “knowingly and voluntarily waives” his right to appeal or collaterally
challenge his guilty plea or “his sentence as imposed by the Court and the manner
in which the sentence is determined . . . .” Plea Agrmt. at 5, 6. It clearly
explained that the maximum term of imprisonment was twenty years, id. at 2, that
the district court would consider the factors in 18 U.S.C. § 3553(a) and the
advisory Sentencing Guidelines, id. at 3, and had the authority to impose any
sentence within the 20-year maximum sentence, id. at 5 (emphasis added). It
further stated that both parties reserved the right to advocate for and present
evidence relevant to guideline adjustments. Id. at 4. Mr. Rabieh signed the plea
agreement after acknowledging that he had discussed it with his attorney and
understood it. Id. at 11.
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Furthermore, Mr. Rabieh signed a Petition to Enter Plea of Guilty, in which
he stated that he knew the sentence was to be determined solely by the district
court and could be up to twenty-years’ imprisonment. Mot. to Enforce, Ex. 1, at
4. Mr. Rabieh also agreed that he knew that “there is no limitation placed on the
information the judge can consider at the time of sentencing concerning [his]
background, character and conduct,” and that the district court would take these
factors into consideration at sentencing. Id. at 6. He further agreed that the
guilty plea and the waivers of his rights were made voluntarily and completely of
his own free choice, id. at 8, that no one had made him any promises or
predictions about the sentence that would be imposed, id. at 9, and that there was
no further information he wanted before entering a plea, id. at 10.
Likewise, at the plea colloquy, Mr. Rabieh stated that he understood the
rights he was waiving and the terms of the plea agreement and that he was
pleading guilty voluntarily. Mot. to Enforce, Ex. 3 (Tr. of Change of Plea Hr’g)
at 5-11. He stated he understood there that if the sentencing guideline
determination differed than how he expected, he still would not have a right to
appeal, id. at 10, and he acknowledged his understanding that even if the district
court made an error of law at sentencing, he was giving up his right to appeal that
error, id. at 12-13.
Mr. Rabieh has the burden to show that he did not knowingly and
voluntarily waive his right to appeal. See United States v. Edgar, 348 F.3d 867,
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872-73 (10th Cir. 2003). “A mere silent record does not satisfy this burden.” Id.
at 873. Mr. Rabieh presents no record evidence showing that he did not
understand the waiver, and nothing in the record suggests that he did not
knowingly and voluntarily enter into the plea agreement. Knowledge of the
specific claims of error in sentencing is not a prerequisite for a knowing waiver of
the right to appeal the sentence. Hahn, 359 F.3d at 1326. In deciding whether a
waiver is knowing and voluntary, the focus is on the “right relinquished” rather
than on the “prospective result of the sentencing proceeding.” Id. Therefore,
Mr. Rabieh’s claimed unawareness that his past convictions could trigger a career
offender enhancement has no bearing on whether he knowingly and voluntarily
entered into the appeal waiver.
Accordingly, based on the language of the plea agreement, the plea
petition, and his reaffirmation of the plea agreement’s provisions during the Rule
11 colloquy, we conclude Mr. Rabieh knowingly and voluntarily waived his right
to appeal his sentence. We GRANT the government’s motion to enforce the plea
agreement and DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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