United States v. Boroughf

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 3, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1085
(D.C. No. 1:18-CR-00013-PAB-1)
EDWARD BOROUGHF, (D. Colo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
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Following his acceptance of a plea agreement that included a waiver of his
right to appeal, Edward Boroughf pleaded guilty to assault with a dangerous weapon,
in violation of 18 U.S.C. § 113(a)(3). He was sentenced to 84 months’ imprisonment
pursuant to a stipulation in the plea agreement. Despite his waiver, Boroughf filed a
notice of appeal. The government has moved to enforce his appeal waiver. See
United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
In evaluating a motion to enforce a waiver, we consider: “(1) whether the
disputed appeal falls within the scope of the waiver of appellate rights; (2) whether
*
This order and judgment is not binding precedent, except under the doctrines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.
the defendant knowingly and voluntarily waived his appellate rights; and (3) whether
enforcing the waiver would result in a miscarriage of justice.” Id. at 1325. Boroughf
has filed a response conceding that he waived his right to direct appeal. Aplt. Resp.
at 2.
Our independent review confirms that Boroughf’s appeal waiver is
enforceable. As he concedes, his appeal issues fall within the scope of his waiver or
are issues not appropriately raised on direct appeal. The plea agreement clearly sets
forth the appeal waiver and states that it was knowing and voluntary, and the district
court confirmed Boroughf’s understanding of his appeal waiver during his change of
plea hearing. Moreover, we see no evidence contradicting Boroughf’s knowing and
voluntary acceptance of the appeal waiver. Finally, there is no indication that
enforcing the waiver would result in a miscarriage of justice as defined in Hahn,
359 F.3d at 1327.
The motion to enforce is granted and this matter is dismissed.
Entered for the Court
Per Curiam
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