United States v. Heider ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 3, 2009
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3256
v. (D.C. No. 6:07-CR-10220-WEB-1)
(D. Kan.)
JEFFREY R. HEIDER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, HARTZ, and McCONNELL, Circuit Judges.
The government has moved to enforce defendant Jeffrey R. Heider’s waiver
of his right to appeal as set forth in the parties’ plea agreement, and to dismiss
this appeal. Mr. Heider’s appointed counsel filed a response pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that this appeal presents no legally
nonfrivolous issues, and counsel moves to withdraw. At this court’s request,
*
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 This order and judgment is not binding precedent, except under the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.
Mr. Heider filed a pro se response arguing that the plea agreement should not be
enforced because enforcement of the appeal waiver would result in a miscarriage
of justice.
Mr. Heider pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g) and to corruptly influencing a witness in violation
of 18 U.S.C. § 1512(b). Pursuant to the comprehensive plea agreement, he
“knowingly and voluntarily waive[d] any right to appeal . . . any matter in
connection with this prosecution, [his] conviction, and sentence.” Plea
Agreement at 6. Further, he agreed to “waive[] any right to file and prosecute an
appeal of a sentence imposed which is within the guideline range determined
appropriate by the court.” Id. Additionally, he “waive[d] the right to appeal the
sentence imposed . . . except to the extent . . . the court depart[ed] upwards from
the applicable sentencing guideline range determined by the court.” Id.At sentencing, the district court determined, among other things, that a
four-level guideline enhancement was appropriate after finding that Mr. Heider
possessed the firearm in connection with another felony offense. The district
court then sentenced Mr. Heider to 120 months of imprisonment on the
felon-in-possession count and 180 months of imprisonment on the
influencing-a-witness count, with the sentences to run concurrently.
Thereafter, Mr. Heider filed a notice of appeal. The government has moved
to enforce the appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315-2-
(10th Cir. 2004) (en banc) (per curiam). In Hahn, we held that a waiver of
appellate rights will be enforced if (1) “the disputed appeal falls within the scope
of the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily
waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a
miscarriage of justice.” Id. at 1325. The miscarriage-of-justice factor requires
the defendant to show (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 marks omitted). To satisfy the last factor, “the error must seriously
affect the fairness, integrity or public reputation of judicial proceedings.” Id.(quotation marks and alterations omitted).
Because Mr. Heider’s arguments concern only the third Hahn factor–
miscarriage of justice–we address only this factor. See United States v. Porter,
405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that court need not address
each Hahn factor if defendant does not raise issue relating to that factor).
Mr. Heider argues that the appeal waiver should not be enforced on
miscarriage-of-justice grounds because the government withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). According to
Mr. Heider, the prosecution failed to produce ballistics reports until sentencing
and these reports were used for the relevant-conduct, four-level enhancement. He
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contends he would not have signed the plea agreement if he had been aware of
these reports.
Liberally construing Mr. Heider’s pro se response, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972), we conclude that he has not shown a miscarriage of
justice. His concurrent sentences of 120 and 180 months are within the statutory
maximums of ten years for the felon-in-possession count and twenty years for the
witness-influencing count.
And the waiver is not “otherwise unlawful.” See Hahn, 359 F.3d at 1327(quotation omitted). The plea agreement specified that the guidelines be applied
by the district court, that the district court could consider any reliable evidence in
determining the offense level, that the district court could consider conduct
charged in dismissed counts of the indictment and other uncharged criminal
activity as relevant conduct when calculating the offense level for the two counts
to which Mr. Heider pled guilty, that the district court would be the sole decider
of his sentence, and that Mr. Heider waived any right to appeal a sentence
imposed within the guideline range determined by the court. The plea agreement
also indicated that Mr. Heider understood that
the United States will provide to the court and the United States
Probation Office all information it deems relevant to determining the
appropriate sentence in this case. This may include information
concerning the background, character, and conduct of [Mr. Heider]
including the entirety of [his] criminal activities. [He] understands
these disclosures are not limited to the count to which [he] has pled
guilty.
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Plea Agreement at 7. Additionally, at the change of plea hearing, Mr. Heider
again confirmed that he understood that the sentence was a matter solely within
the district court’s discretion and that the court could consider any reliable
information about his background, character, and conduct at the time of
sentencing. The plea agreement and plea-hearing colloquy establish that the
court’s determination of the guideline range set the bounds for the waiver,
permitting an appeal only to the extent the court departed upwards from the
applicable sentencing guideline range determined by the court. Thus, Mr. Heider
has not shown that enforcement of the waiver would result in a miscarriage of
justice “seriously affect[ing] the fairness, integrity or public reputation of judicial
proceedings.” See Hahn, 359 F.3d at 1327 (quotation marks omitted).
Accordingly, we GRANT the government’s motion to enforce the plea
agreement, GRANT Mr. Heider’s counsel’s motion to withdraw, and DISMISS
the appeal.
ENTERED FOR THE COURT
PER CURIAM
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