United States v. Holder , 174 F. App'x 425 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-1437
v. (D.C. No. 03-CR-475-B)
(District of Colorado)
BRUCE HOLDER,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TACHA, Chief Judge, and HOLLOWAY and HARTZ, Circuit Judges.
Defendant-appellant Bruce Holder entered a plea of guilty to a charge of possession
of a firearm after a former felony conviction, a violation of 18 U.S.C. § 922(g). He now
brings this appeal, raising only one issue – whether his sentence should be set aside under the
holding of United States v. Booker, 543 U.S. 220 (2005). The government has moved to
dismiss the appeal, contending that jurisdiction is lacking because Holder does not present
any colorable claim that his sentence was imposed in violation of law or as a result of an
incorrect application of the Guidelines.
*
This order and judgment is not binding precedent, except under the doctrines of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.
The plea agreement in this case recites that it is entered into under Fed. R. Crim. P.
11(c)(1)(C).1 In the agreement, “[t]he parties stipulate that sentencing in this case will be
determined by application of the sentencing guidelines, issued pursuant to 28 U.S.C. §
994(a).”
Although Fed. R. Civ. P. 11(c) permits agreements of greater specificity, in this case
the government only agreed to a sentence at the lowest end of the applicable range. And,
under the language just quoted, the parties specifically agreed that the guideline range was
to be calculated by the district court in the ordinary way.
A defendant’s right to appeal his sentence is limited by 18 U.S.C. § 3742(a), which
provides that an appeal may be taken if the sentence was imposed in violation of law or as
a result of an incorrect application of the sentencing guidelines (along with two other grounds
1
Rule 11(c) provides, in pertinent part:
(c) Plea Agreement Procedure.
(1) In General. An attorney for the government and the defendant's attorney
. . . may discuss and reach a plea agreement. . . . . If the defendant pleads
guilty . . . the plea agreement may specify that an attorney for the
government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant's request, that a
particular sentence or sentencing range is appropriate or that a particular
provision of the Sentencing Guidelines, or policy statement, or sentencing
factor does or does not apply (such a recommendation or request does not
bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of the Sentencing
Guidelines, or policy statement, or sentencing factor does or does not apply
(such a recommendation or request binds the court once the court accepts
the plea agreement).
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that are plainly not applicable here). The government points out that Mr. Holder does not
allege any error in the application of the guidelines. Thus, this appeal can be maintained only
if it was imposed in violation of law. The government argues that there can have been no
violation of law here, because after the guidelines range had been calculated, the sentence
was imposed based on the agreement, leaving no possibility for Booker error. We agree, as
this issue has recently been resolved in this circuit. United States v. Silva, 413 F.3d 1283(10th Cir. 2005).2
We conclude that this case is not distinguishable from Silva, and so is controlled by
it. Accordingly, we must DISMISS this appeal for lack of jurisdiction.
It is so ordered.
ENTERED FOR THE COURT
William J. Holloway, Jr.
Circuit Judge
.
2
We ordered and received supplemental briefs on the application of Silva.
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