United States v. Kutz

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 28, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6266
(D.C. No. 5:10-CR-00217-F-1)
ERIC STANTON KUTZ, (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL and MATHESON, Circuit Judges.
The sole issue raised by Eric Stanton Kutz, following his resentencing, is
whether the district court’s determination that he is a “career offender” under
§ 4B1.1 of the United States Sentencing Guidelines (hereinafter, “Guidelines” or
“USSG”) is procedurally unreasonable. Also pending before us is the
Government’s Motion to Supplement the Record or, Alternatively, Motion to
Take Judicial Notice (hereinafter, “Motion to Supplement”) 1 of Mr. Kutz’s Plea
*
This order and judgment is not binding precedent, except under the doctrines of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.
1
The Government also filed a Motion to File Motion to Supplement under Seal,
(continued...)
Agreement and the transcript of the change-of-plea hearing. Exercising
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant the
Government’s Motion to Supplement and conclude Mr. Kutz’s appeal falls within
the waiver set forth in the Plea Agreement. Accordingly, we dismiss the appeal
without reaching the merits.
I
In October 2010, Mr. Kutz pled guilty to having been a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and having knowingly and
intentionally possessed with intent to distribute fifty grams or more of a substance
containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). In May
2011, he was convicted of these offenses. As relevant here, the district court
determined that Mr. Kutz was a “career offender,” under USSG § 4B1.1 (2011),
and also determined that Mr. Kutz’s prior convictions required that his
§ 922(g)(1) sentence be enhanced pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1). Mr. Kutz appealed to challenge the ACCA
enhancement. We applied the ACCA’s “residual clause,” see id.
§ 924(e)(2)(B)(ii), and affirmed. United States v. Kutz, 439 F. App’x 751, 753
(10th Cir. 2011) (unpublished). However, following the Supreme Court’s
decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 2563 (2015),
1
(...continued)
which we provisionally granted. We have no need to revisit that determination
here.
2
Mr. Kutz moved to vacate his ACCA-enhanced sentence, pursuant to 28 U.S.C.
§ 2255. The district court granted Mr. Kutz relief.
In late August 2016, the district court resentenced Mr. Kutz without the
ACCA enhancement. See United States v. McGaughy, 670 F.3d 1149, 1153 (10th
Cir. 2012). More specifically, as relevant here, the district court conducted “de
novo resentencing” and entered a new judgment commensurate with those
proceedings. United States v. West, 646 F.3d 745, 750 (10th Cir. 2011)
(explaining “the default in this circuit is de novo resentencing”); see Magwood v.
Patterson, 561 U.S. 320, 338–39 (2010) (“[T]he existence of a new judgment is
dispositive. . . . This is Magwood’s first application challenging that intervening
judgment. The errors he alleges are new. An error made a second time is still a
new error.”). In light of this new judgment, we agree with the parties that the
claims and arguments Mr. Kutz raised or failed to raise regarding his old
sentences—and the district court’s and our prior determinations with respect to
them—are irrelevant here. See Magwood, 561 U.S. at 338–39. That is to say, as
regards the new sentences, we look only to the resentencing proceedings.
At resentencing, the maximum sentence Mr. Kutz could have received for
his § 922(g)(1) conviction was 120 months’ imprisonment because he is not
subject to the ACCA enhancement. And the maximum sentence he could have
received for his § 841(a)(1) conviction remained 480 months’ imprisonment.
Based on these offenses, Mr. Kutz’s criminal history category of VI, and his
3
acceptance of responsibility, his advisory sentencing range would have been 110
to 137 months’ imprisonment.
However, a presentence investigation report (PSR) stated that, at the time
Mr. Kutz committed these federal offenses, he had at least two prior convictions
of a “crime of violence,” as defined by USSG § 4B1.2 (2015). 2 More specifically,
adopting that PSR over Mr. Kutz’s objection, the district court determined that
Mr. Kutz had two qualifying prior convictions: (1) assault with a dangerous
weapon, in violation of Okla. Stat. tit. 21, § 645; and (2) pointing a firearm at
another person, in violation of Okla. Stat. tit. 21, § 1289.16. On this basis, the
district court determined that Mr. Kutz was a “career offender” to whom a
correspondingly higher “offense level” applies, as enumerated in USSG § 4B1.1
(2015).
The district court calculated that Mr. Kutz’s advisory sentencing range was
188 to 235 months’ imprisonment, the same range the court determined applied at
the first sentencing proceeding in 2011. Impressed by Mr. Kutz’s record of
rehabilitation while incarcerated, the district court varied downward from the
range it had calculated. The court sentenced Mr. Kutz to concurrent terms of 120
2
The district court sentenced Mr. Kutz based on the 2015 Guidelines. Mr. Kutz
does not contend this was error, and our references are to USSG §§ 4B1.1 and
4B1.2 (2015). Our references to federal statutes are to the versions in effect on
March 29, 2010, the date of his federal offenses. References to state statutes are
to the versions in effect in 2002, when Mr. Kutz committed those offenses.
4
months’ imprisonment for the § 922(g)(1) offense (the statutory maximum) and
150 months’ imprisonment for the § 841(a)(1) offense (well below the 480-month
maximum). 3
The sole issue raised by Mr. Kutz is that his sentences are procedurally
unreasonable because the district court erred in calculating his Guidelines range.
In particular, Mr. Kutz contends that he is not a “career offender” under USSG
§ 4B1.1 because, he argues, neither of his prior convictions qualifies as a “crime
of violence” as that term is defined in USSG § 4B1.2. He points to precedents
that, in his view, support his claims with respect to both convictions and notes
that his challenge to the predicate status of either offense would entitle him to
relief.
In response to Mr. Kutz’s sentencing issue, the Government argues that the
appeal waiver in Mr. Kutz’s Plea Agreement forecloses our consideration of his
claim that the district court erred in calculating his advisory sentencing range. To
that end, the Government filed the Motion to Supplement, seeking to “supplement
the record on appeal” with two documents. Id. at 1. The first document is a copy
of the Plea Agreement that Mr. Kutz entered into with the Government on
October 6, 2010, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), and
which was filed under seal in the district court. Plea Agreement, United States v.
3
The district court also imposed a term of supervised release, which is not at
issue here.
5
Kutz, No. 5:10-CR-00217-F (W.D. Okla. Oct. 14, 2010), ECF 40. The second
document is a recently-created transcript of the October 14, 2010, change-of-plea
hearing at which the district court accepted Mr. Kutz’s guilty plea.
II
We first address the Government’s Motion to Supplement, which we grant
in pertinent part. Second, therefore, we analyze (1) whether this appeal is within
the scope of the appeal waiver contained in the Plea Agreement; (2) whether Mr.
Kutz pled guilty and entered into the Plea Agreement knowingly and voluntarily;
and, if so, (3) whether the waiver nevertheless is unenforceable in these
circumstances. We conclude Mr. Kutz’s challenge to the procedural
reasonableness of his sentence based on USSG §§ 4B1.1 and 4B1.2 is within the
scope of the appeal waiver in the Plea Agreement, which, like his guilty plea, he
entered into knowingly and voluntarily, and that no other considerations prevent
our enforcement of the waiver. Consequently, we enforce the waiver and dismiss
this appeal without reaching the merits of Mr. Kutz’s procedural challenge to his
sentence.
A. Motion to Supplement
We first turn to the Government’s Motion to Supplement the record on
appeal with the Plea Agreement and the transcript of the change-of-plea hearing.
After the Government argued that the Plea Agreement contains a valid and
enforceable appeal waiver, Mr. Kutz countered that the Government “has not
6
carried its burden of designating a record sufficient for this [c]ourt to decide”
whether the alleged appeal waiver is enforceable and applies to the claim he
raises here. Aplt. Reply Br. at 1 (explaining his reply brief was his “first
opportunity” to point out that the Government did not file these materials with or
before it filed its answer brief).
Mr. Kutz misapprehends the distinction between the record and an
appendix. See Fed. R. App. P. 10(a) (“The following items constitute the record
on appeal: . . . the original papers and exhibits filed in the district court . . . [and]
the transcript of proceedings, if any . . . .”). As we have explained, “all of the
transcripts (if they have been ordered) and documents and exhibits filed in the
district court remain in the record regardless of what the parties put in the
appendix.” Milligan–Hitt v. Bd. of Trs. of Sheridan Cty. Sch. Dist. No. 2, 523
F.3d 1219, 1231 (10th Cir. 2008) (footnote omitted).
The Government relies on the Plea Agreement for its argument that Mr.
Kutz’s claim is foreclosed by a valid and enforceable appeal waiver contained in
that agreement. The Plea Agreement was filed in the district court. Thus, the
Plea Agreement has always been part of the record that we, Mr. Kutz, and the
Government may rely on with respect to any issue in this appeal. See Fed. R.
App. P. 30(a)(2).
With a few caveats that are not material here, the same analysis applies to
the hearing transcript. As noted, Federal Rule of Appellate Procedure 10
7
explicitly contemplates that, as here, a transcript of the proceedings in the district
court might not be filed but, rather, might be ordered only after the transcript is
needed to decide an issue on appeal. See Fed. R. App. P. 10(b) (setting forth
procedures for ordering transcripts of the district court proceedings). But the
“transcripts of proceedings” in the district court “constitute the record on appeal”
regardless of when they are created, even if, as here, this occurs long after the
events they memorialize. Fed. R. App. P. 10(a)(2).
More specifically, the transcript of the October 14, 2010, change-of-plea
hearing was created and certified on January 13, 2017. “When a transcript is
complete, the reporter must file it with the district clerk and notify the circuit
clerk of the filing.” Fed. R. App. P. 11(b)(1)(C). At that point, of course, the
transcript of the proceedings takes its place in the record alongside the facts it
memorializes, and, like those facts, the transcript may be relied upon by the court
or the parties. Cf. Fed. R. App. P. 10(c) (explaining that parties may rely on a
district-court-approved statement of the facts “[i]f the transcript of a hearing or
trial is unavailable”). Unfortunately, through no fault of the Government, that
last step did not happen here; the transcript was not filed in the district court.
The day after Mr. Kutz pointed out this omission, the Government sought to
correct it by filing the transcript with the Motion to Supplement.
In addition, Mr. Kutz has not shown prejudice by this third-party omission
of a transcript. Mr. Kutz refers to the Plea Agreement in his opening brief and he
8
also claims that the “Government expressly waived enforcement of the appeal
waiver” to permit his 2011 appeal to proceed. Aplt. Br. at 3. So Mr. Kutz cannot
claim surprise at the Government’s reliance on documents necessary to address
whether the waiver is valid and enforceable. Indeed, Mr. Kutz argues at length in
his reply brief why, in his view, the appeal waiver is unenforceable even if one
considers, inter alia, the hearing colloquy.
Accordingly, the Government’s Motion to Supplement is moot with respect
to the Plea Agreement, which is already part of the record. We grant the Motion
to Supplement the record with the transcript of the October 14, 2010, hearing
before the district court. Fed. R. App. P. 10(e)(2) (“If anything material to either
party is omitted from or misstated in the record by error or accident, the omission
or misstatement may be corrected and a supplemental record may be certified and
forwarded . . . by the court of appeals.”). We need not address the Government’s
additional arguments regarding judicial notice.
B. The appeal waiver is valid and enforceable
The Government seeks to enforce the “appellate waiver” in the Plea
Agreement and on that basis asks us to dismiss Mr. Kutz’s appeal without
reaching the merits. Aple. Br. at 15. Here, the Government raised the appeal
waiver issue “for the first time” in its answer brief, having “opted to raise the
waiver issue [there], as opposed to [by a] motion” to dismiss the appeal under our
local rules. Aplt. Reply Br. at 1; see 10th Cir. R. 27.3(A)(1)(d). As we have
9
explained, there is no rule requiring the Government to file such a motion; it may
“raise[] the waiver in its brief.” United States v. Calderon, 428 F.3d 928, 930
(10th Cir. 2005). Mr. Kutz counters that the appeal waiver is either invalid or
unenforceable.
1. Legal standard
“This court will hold a defendant to the terms of a lawful plea agreement.”
United States v. Tanner, 721 F.3d 1231, 1233 (10th Cir. 2013) (per curiam)
(quoting United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998)). We
will enforce an appeal waiver 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.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir.
2011) (alteration in original) (quoting United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (en banc) (per curiam)). The “waiver-enforceability analysis is
informed by contract principles, which govern plea agreements.” Id. (quoting
United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008)).
“Whether a defendant’s appeal waiver set forth in a plea agreement is enforceable
is a question of law.” Id. (quoting Ibarra-Coronel, 517 F.3d at 1221).
2. Scope
“When construing an appellate waiver, we apply ‘well-established contract
principles’ and examine the plain language of the plea agreement.” United States
10
v. Taylor, 413 F.3d 1146, 1151 (10th Cir. 2005) (citation omitted). “[W]e
construe a plea agreement so as to give effect to all of its words and
phrases . . . .” Id. at 1153. “[W]e must interpret the agreement according to the
defendant’s reasonable understanding of its terms.” United States v. Scott, 469
F.3d 1335, 1338 (10th Cir. 2006). For this reason, “we strictly construe ‘the
scope of [the] appellate waiver[] and [interpret] any ambiguities . . . against the
Government and in favor of a defendant’s appellate rights.’” Taylor, 413 F.3d at
1151–52 (alterations in original) (citation omitted).
In Mr. Kutz’s case, the provisions of the Plea Agreement purporting to act
as a waiver of appellate rights are lengthy and explicit:
Waiver of Right to Appeal and Bring Collateral Challenge
[Mr. Kutz] understands that the Court will consider those
factors in 18 U.S.C. § 3553(a) in determining his sentence. [He] also
understands that the Court has jurisdiction and authority to impose
any sentence within the statutory maximum for the offense(s) to
which he is pleading guilty. [Mr. Kutz] further understands that 28
U.S.C. § 1291, and 18 U.S.C. § 3742, give him the right to appeal the
judgment and sentence imposed by the Court. Acknowledging all
this, [Mr. Kutz,] in exchange for the promises and concessions made
by the [Government] in this plea agreement, knowingly and
voluntarily waives his right to:
a. Appeal or collaterally challenge his guilty plea, sentence
and restitution imposed, and any other aspect of his conviction . . . ;
b. Appeal, collaterally challenge, or move to modify under 18
U.S.C. § 3582(c)(2) or some other ground, his sentence as imposed
by the Court and the manner in which the sentence is determined,
provided the sentence is within or below the advisory guideline range
determined by the Court to apply to this case. [He] acknowledges
11
that this waiver remains in full effect and is enforceable, even if the
Court rejects one or more of the positions of the [Government] or
[Mr. Kutz] set forth in paragraph 7.
c. It is provided that [Mr. Kutz] specifically does not waive
the right to appeal a sentence above the advisory sentencing
guideline range determined by the Court to apply to this case.
Plea Agreement at 8–9 (emphasis added).
Mr. Kutz is pursuing an appeal of his sentences, challenging the manner in
which the sentences have been determined, where those 120-month and 150-
month sentences both fall below the advisory Guidelines range of 188 months’
imprisonment determined by the court to apply in his case. Mr. Kutz’s appeal
falls squarely within the plain-text scope of the “Waiver of Right to Appeal” in
the Plea Agreement. Id. at 8.
To counter this text-based conclusion, Mr. Kutz argues that “the terms of”
the Plea Agreement “do not address an appeal from resentencing after being
granted post-conviction relief.” Aplt. Reply Br. at 4. These qualifiers regarding
the nature of the district court’s proceedings are irrelevant in this instance.
Rather, the Plea Agreement explicitly and succinctly covers the exact scenario
presented to this court: “[Mr. Kutz] waive[d] his right to . . . [a]ppeal . . . his
sentence . . . .” Plea Agreement at 8–9. Mr. Kutz does not even attempt to
analyze this or any of the other text in the Plea Agreement.
Whether a proceeding in the district court is called a sentencing or a
resentencing (here, following a separate, successful collateral attack), the result
12
challenged is the same: a sentence that is incorporated in the judgment. See, e.g.,
United States v. Lonjose, 663 F.3d 1292, 1300 n.9 (10th Cir. 2011); see also
Camreta v. Greene, 563 U.S. 692, 704 (2011) (explaining that appellate courts
“review[] judgments, not statements in opinions” (citation omitted)). And the
nature of the procedural vehicle by which Mr. Kutz seeks to raise that challenge
is not in dispute: he brings an appeal, not a collateral attack or some other
mechanism that might instead be covered by some other language in the Plea
Agreement. But, except in limited circumstances inapplicable here, the waiver
prevents Mr. Kutz from pursuing an “[a]ppeal” in this court of “his sentence,” the
precise procedural vehicle and exact result challenged here. Plea Agreement at 9.
Mr. Kutz advances no textual or reasoned argument to the contrary.
In sum, according to the Plea Agreement, Mr. Kutz opted to forego an
appeal exactly like this one in favor of a discretionary sentence not in excess of
the statutory maximum and below the Guidelines range determined by the district
court. If the district court committed any legal error in making that Guidelines
calculation, it is within the scope of the waiver enumerated in Mr. Kutz’s Plea
Agreement with the Government. Mr. Kutz long ago received the benefits of that
bargain, including dismissal of another charge.
3. Knowing and voluntary
We next proceed to discuss whether Mr. Kutz entered into this Plea
Agreement knowingly and voluntarily. Of course, “[w]e only enforce waivers
13
that defendants enter into knowingly and voluntarily.” Tanner, 721 F.3d at 1233
(citation omitted). “If a guilty plea is not knowing and voluntary, it is void, and
any additional waivers in the plea agreement generally are unenforceable.”
United States v. Jim, 786 F.3d 802, 806 (10th Cir. 2015) (citation omitted).
“Whether a guilty plea was entered knowingly and voluntarily is . . . a
question of law we review de novo.” United States v. Rollings, 751 F.3d 1183,
1191 (10th Cir. 2014). It is a defendant’s “burden to show that his guilty plea
was not knowing or voluntary.” Jim, 786 F.3d at 810. To “meet this burden,” a
defendant must “prove”—i.e., point to sufficient direct or circumstantial
evidence—“that his plea was not knowing and voluntary.” Id.
“In determining whether a defendant waived his appellate rights knowingly
and voluntarily, ‘we especially look to two factors.’” Tanner, 721 F.3d at 1233
(quoting Hahn, 359 F.3d at 1325). “The first factor is ‘whether the language of
the plea agreement states that the defendant entered the agreement knowingly and
voluntarily’ and the second is whether there was ‘an adequate Federal Rule of
Criminal Procedure 11 colloquy.’” Id. (quoting Hahn, 359 F.3d at 1325).
a. The text of the Plea Agreement
When “considering whether an appellate waiver is knowing and voluntary,
we consider whether the defendant entered into the plea agreement knowingly and
voluntarily.” Rollings, 751 F.3d at 1190. That is to say, “[i]nstead of looking
solely to the defendant’s understanding of the relinquished rights—such as jury
14
trial, appeal, sentencing certainty—we have also looked to whether the defendant
understood the nature of the charges and the consequences of the guilty plea
itself.” Id. at 1188 (collecting cases). If “the defendant did not voluntarily enter
into the agreement, the appellate waiver subsumed in the agreement also cannot
stand.” Id. at 1189. “Where a plea agreement contains a plea and an appellate
waiver, we may therefore look to whether the plea was knowing and voluntary in
deciding whether the plea agreement was entered knowingly and voluntarily.” Id.
at 1190–91. However, “[w]here only the appellate waiver provision is
challenged, as in most cases, we are not obligated to consider whether the plea in
the plea agreement is valid.” Id. at 1190 n.5. This is the case here.
Specifically, Mr. Kutz does not claim that his guilty plea itself was either
unknowing or involuntary, and he does not seek to withdraw it. He also does not
analyze the text of the Plea Agreement to contest his knowing and voluntary
agreement to each of its relevant provisions. The text of the appeal waiver is
broad, but neither subtle nor ambiguous about that breadth. It states that Mr.
Kutz “understands that the Court has jurisdiction and authority to impose any
sentence within the statutory maximum for the offense(s) to which he is pleading
guilty.” Plea Agreement at 8. The Plea Agreement also discusses his “right to
appeal the judgment and sentence imposed by the Court,” which he
“[a]cknowledg[ed]” he was giving up. Id. In fact, he “knowingly and voluntarily
waive[d] his right to” appellate review in perpetuity with respect to, inter alia,
15
any at-or-under-maximum sentence. Id. Nothing in this or any other provision of
the Plea Agreement suggests that Mr. Kutz was unaware he was explicitly
waiving these valuable appeal rights in exchange for the benefits the Government
offered.
Mr. Kutz takes a different approach to this text. He admits that he “entered
into a plea agreement that contained an appellate waiver,” but emphasizes that he
did so “when he was facing an enhanced penalty under the [ACCA].” Aplt. Reply
Br. at 5 (emphasis added). He adds that “[t]he issue whether [he] qualified as a
career offender was irrelevant at the time he entered into the plea agreement,”
that “[i]t was only after” Johnson was decided, “and the district court vacated his
sentence[] based on” the ACCA, “that the issue of career offender took on any
meaning for Mr. Kutz.” Id. at 5–6. From this view of the record, he concludes
that he “could not have foreseen these new and significant constitutional
developments at the time he entered into the plea agreement.” Id. at 6.
Mr. Kutz’s claim is belied by the fact that his Guidelines range was
calculated to be the same at both sentencing proceedings. When Mr. Kutz entered
into the Plea Agreement, as now, he knew the calculation of his Guidelines range
mattered, and yet he signed the Plea Agreement containing the appeal waiver.
Further, it is Mr. Kutz’s burden to advance a textual ambiguity in the Plea
Agreement which would permit him to benefit from later changes in the law. See
Jim, 786 F.3d at 810. This he has not done. When he was sentenced in 2011,
16
moreover, the Supreme Court’s retroactivity jurisprudence was not only
foreseeable, it was hornbook law. See, e.g., Beard v. Banks, 542 U.S. 406 (2004);
Schriro v. Summerlin, 542 U.S. 348 (2004); Teague v. Lane, 489 U.S. 288 (1989).
We conclude that the text of the Plea Agreement evidences a knowing and
voluntary decision to waive the claims here.
b. The plea colloquy
“In considering the totality of the circumstances, either the express
language of the plea agreement, if sufficiently clear, detailed, and comprehensive,
or the probing inquiry of a proper Rule 11 colloquy could be enough to conclude
the waiver was knowing and voluntary.” Tanner, 721 F.3d at 1234. As we stated
in Tanner, “the synergistic effect of both will often be conclusive.” Id. To that
end, we have explained that “[a] properly conducted plea colloquy, particularly
one containing express findings, will, in most cases, be conclusive on the waiver
issue, in spite of a defendant’s post hoc assertions to the contrary.” Id. at 1233.
Finally, where a defendant “has not presented any argument or evidence that the
waiver was unknowing or involuntary, and our independent review d[oes] not
identify any basis to determine otherwise,” we have often “conclude[d] that this
portion of the” waiver “analysis also is satisfied.” United States v. Cudjoe, 634
F.3d 1163, 1167 (10th Cir. 2011).
Mr. Kutz does not address the plea colloquy. He has therefore waived any
argument that he might have raised based on an inadequate colloquy. See United
17
States v. De Vaughn, 694 F.3d 1141, 1154–55 (10th Cir. 2012). Moreover, our
independent review of the plea colloquy alleviates any doubt on this score. The
transcript of the change-of-plea hearing reveals that the district court was
thorough and methodical in its approach during the lengthy colloquy. As just one
pertinent example, the district court ensured that Mr. Kutz understood he had
“certain appeal rights,” that he was “waiving most of” them, and that this
included his “right to appeal the sentence that” the court “impose[d] in this case,
as long as that sentence [wa]s within or below the guideline range that [the
district court] appl[ied] in this case.” Plea Tr. at 11–12. The district court also
ensured that Mr. Kutz knew that, under the Plea Agreement, he was “waiving
those rights even though [he] d[id] not yet know what [his] sentence . . . [would]
be.” Id. at 12. Mr. Kutz responded: “Yes, Your Honor.” Id. Mr. Kutz’s own
words during the plea colloquy belie his claim that he did not understand he was
giving up his right to bring this appeal of his sentence to challenge the district
court’s Guidelines calculation. See Cudjoe, 635 F.3d at 1166–67. The colloquy
also convinces us that Mr. Kutz pled guilty and entered into the Plea Agreement
voluntarily.
Combined with the unambiguously broad appeal waiver in the Plea
Agreement itself, the plea colloquy is conclusive that Mr. Kutz knowingly and
voluntarily waived his right to bring this appeal. See Tanner, 721 F.3d at
1233–34.
18
4. The miscarriage of justice exception
Mr. Kutz’s final argument is that it would be a miscarriage of justice to
enforce this valid appeal waiver. “For purposes of the enforcement of an appeal
waiver, ‘[a] miscarriage of justice occurs’” in only four sets of circumstances.
Polly, 630 F.3d at 1001 (alteration in original) (quoting United States v.
Shockey, 538 F.3d 1355, 1357 (10th Cir. 2008)). They are: (1) “where the district
court relied on an impermissible factor such as race”; (2) “where ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid”; (3) “where the sentence exceeds the statutory maximum”; or
(4) “where the waiver is otherwise unlawful.” Id. (quoting Shockey, 538 F.3d at
1357). Further, this “list is exclusive: ‘enforcement of an appellate waiver does
not result in a miscarriage of justice unless enforcement would result in one of the
four situations enumerated’ above.” Id. (quoting Shockey, 538 F.3d at 1357).
None of the first three circumstances are at issue here. Regarding the
fourth, Mr. Kutz vaguely alludes to “preserv[ing] the integrity of the judicial
system” as a rationale for circumventing the valid waiver. Aplt. Reply Br. at 6.
But “Mr. Kutz’s appeal of the sentence imposed on resentencing is based” solely
“on the argument [that] the sentencing guidelines were improperly calculated.”
Id. at 9. And he claims that, “[i]f he is successful[,] then he will have shown the
district court’s sentencing decision was not procedurally sound.” Id. In his view,
this alleged “error affects the fairness, integrity, and public reputation of the
19
judicial proceedings held in this case[,] satisfying the miscarriage of justice
factor,” and permitting him to appeal despite the valid appeal waiver contained in
the Plea Agreement. Id.
Mr. Kutz’s argument misses the mark because he conflates the fourth prong
of the standard for plain error review with the fourth, distinct avenue to
circumvent an otherwise-enforceable appeal waiver—i.e., where a “miscarriage of
justice” would result. Polly, 630 F.3d at 1001. Specifically, it is true that in
Hahn we held “that to satisfy the fourth . . . factor”—i.e., to prove “the waiver is
otherwise unlawful—‘the error [must] seriously affect[ ] the fairness, integrity or
public reputation of judicial proceedings[,]’ as that test was employed in United
States v. Olano, 507 U.S. 725, 732 (1993).” 359 F.3d at 1327 (alterations in
original).
We have since clarified, however, that these inquiries—whether there is
plain error and whether enforcing a plea agreement would result in a miscarriage
of justice—involve similar questions, but questions aimed at different issues.
Specifically, an allegation “that enforcement of the waiver would seriously affect
the fairness and integrity of the proceedings” by itself “does not fit into any of the
categories.” Polly, 630 F.3d at 1001. For example, we have “applied the
defendant’s appeal waiver to bar a claim that the district court erred in applying”
a Guideline “enhancement, and that the error ‘affect[ed] the fairness of the
proceedings, as well as the integrity and public reputation of the judicial
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system.’” Id. (alteration in original) (citation omitted). We explained:
[T]he miscarriage of justice exception to enforcement of a waiver of
appellate rights . . . looks to whether “the waiver is otherwise
unlawful,” not to whether another aspect of the proceeding may have
involved legal error. . . . [A]lleged errors in the [district] court’s
determination of [a] sentence . . . [improperly] “focus[] on the result
of the proceeding, rather than on the right relinquished, [which is our
focus when] analyzing whether an appeal waiver is [valid].”
Id. at 1001–02 (last alteration in original) (citations omitted).
Said more succinctly: “An appeal waiver is not ‘unlawful’ merely because
the claimed error would, in the absence of waiver, be appealable. To so hold
would make a waiver an empty gesture.” United States v. Leyva–Matos, 618 F.3d
1213, 1217 (10th Cir. 2010) (citation omitted). “When faced with appellate
waivers like the one in this case, we have consistently applied this principle and
enforced such waivers accordingly.” Id. Consequently, we have held that where
a defendant “does not challenge the lawfulness of the waiver itself, enforcing the
waiver as to his claim that the district court improperly applied [a Guidelines]
enhancement does not result in a miscarriage of justice.” Polly, 630 F.3d at 1002.
This is precisely the claim that Mr. Kutz now makes with respect to the
determination of the length of his sentence based on his allegedly erroneous
classification as a “career offender” under USSG §§ 4B1.1 and 4B1.2. He claims
that “[t]he miscarriage of justice exception” itself “enables reviewing courts to
permit review of convictions and sentences otherwise barred by a knowing and
voluntary appellate waiver covering the scope of the alleged error.” Aplt. Reply
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Br. at 6. To the contrary, it is dispositive that Mr. Kutz does not claim the waiver
itself is unlawful. “The appeal waiver thus bars this claim,” Polly, 630 F.3d at
1002, even if on review of the merits we might have granted relief.
5. Conclusion
Mr. Kutz knowingly and voluntarily entered into the Plea Agreement that
contains an explicit waiver of his right to appeal his sentence, which is what he
now attempts to do. He does not assert that his sentences are above the statutory
maximum, or that they are based on any of the other narrow circumstances which
would bar our enforcement of an otherwise-valid appeal waiver. Therefore, his
valid appeal waiver forecloses our consideration of this appeal.
III
We GRANT the Government’s Motion to Supplement the record with the
transcript of the change-of-plea hearing. We conclude Mr. Kutz’s Plea
Agreement, which included a waiver of his right to appeal his sentences, was
entered knowingly and voluntarily. Accordingly, we enforce the appeal waiver
and DISMISS this appeal.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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