United States v. Muba

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 15, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 07-3017
(D.C. No. 06-CR-10181-M LB)
B W O M I E.V . M U BA , (D . Kan.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, O’BRIEN, and TYM KOVICH, Circuit Judges.
Bwomi E.V. M uba pled guilty, pursuant to a plea agreement, to four counts
of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1), and the district
court sentenced him to sixty months’ imprisonment. Although the plea agreement
included a waiver of his right to appeal, M r. M uba filed a notice of appeal
seeking to challenge the degree of downward departure granted by the
*
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 This order and judgment is not binding precedent, except under the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.
district court. The government has moved to enforce the appeal waiver under
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
W e grant the motion and dismiss this appeal.
I
Under the terms of the plea agreement, M r. M uba waived his right to appeal
any sentence imposed within the guidelines range determined appropriate by the
district court, unless the court departed upwards from the applicable sentencing
guideline range determined by the court. The plea agreement provided that if the
government determined that M r. M uba provided substantial assistance, the
government would ask the district court to consider reducing the sentence he
would otherw ise receive under the applicable statutes or sentencing guidelines.
See 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n); U.S.S.G. § 5K1.1. Even if the
government filed a motion for a reduction in sentence due to substantial
assistance, the plea agreement provided that the district court would still
determine the appropriate sentence.
M r. M uba’s presentence report reflected an applicable advisory guidelines
range of seventy-eight to ninety-seven months’ imprisonment, with Counts 3 and
4 requiring a minimum sentence of sixty months’ imprisonment. Based on his
substantial assistance to authorities, the government filed a motion pursuant to
§ 5K1.1 to depart from the guidelines and the mandatory minimum sentence and
recommended a sentence of forty-eight months’ imprisonment.
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The district court, however, determined that M r. M uba’s cooperation was
not sufficient to justify a reduction from seventy-eight to forty-eight months’
imprisonment. The district court instead sentenced M r. M uba to sixty months of
imprisonment. M r. M uba appealed, and the government moved to enforce the
plea agreement.
II
In Hahn, this court held that the 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.” 359 F.3d at 1325. The government’s motion to enforce addresses each
factor, but M r. M uba argues only that his appeal does not fall within the scope of
the appellate waiver and, if his appeal does fall within the scope of the waiver, he
did not know ingly and voluntarily waive his appellate rights. Accordingly, we
address only the first and second Hahn factors. See United States v. Porter,
405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing each Hahn factor need not be
addressed if defendant does not make argument with respect to that factor).
M r. M uba argues that his appellate waiver did not preclude him from
challenging the degree of departure awarded by the district court under § 5K1.1.
To support his argument, he cites to our recent case of United States v. Gordon,
480 F.3d 1205 (10th Cir. 2007).
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In Gordon, the defendant appealed the portion of her sentence requiring her
to pay restitution, arguing that the amount of restitution ordered exceeded the
M andatory Victim Restitution Act statutory limits. Id. at 1206. The government
sought to enforce the plea agreement on the ground that the defendant waived her
right to appeal the amount of restitution. Id. W e held that the defendant could
appeal the restitution amount, because she did not waive her right to challenge an
unlawful restitution order. Id. at 1208-10.
Unlike in Gordon, M r. M uba does not argue that his sentence was unlaw ful,
and there is no question that his sentence is lawful. His mere dissatisfaction with
the district court’s decision to depart from the guidelines to a lesser extent than
recommended by the government is insufficient to grant him a right to appeal in
light of the plea agreement provisions that the district court would determine the
appropriate sentence and that he reserved his right to appeal only if the district
court departed upwards from the applicable guidelines range determined by the
court. Furthermore, under the terms of the plea agreement, M r. M uba agreed he
would not request a sentence below the low end of the guidelines range.
Accordingly, we conclude that M r. M uba’s appeal falls within the scope of his
appellate waiver.
Because we conclude that M r. M uba’s appeal falls within the scope of the
appeal waiver, we must also consider his second argument that he did not
knowingly and voluntarily enter into the waiver. In determining whether his
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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 is “an adequate Federal
Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. M r. M uba
bears the burden to provide evidence showing he did not enter into the plea
agreement knowingly and voluntarily. Id. at 1329.
He fails to meet this burden. The language of the plea agreement states
that he entered the plea agreement knowingly and voluntarily. At the plea
hearing, he affirmed his understanding that if the government filed a motion
concerning substantial assistance, the court would decide whether to grant the
motion and what sentence to give; that the district court did not know at the time
of the plea hearing what his sentence would be; and that the district court was not
required to follow the government’s recommended sentence. W e presume the
statements M r. M uba made during the plea colloquy are true. See United States v.
Novosel, 481 F.3d 1288, 2007 W L 1087290 at *6 (10th Cir. 2007) (per curiam).
Furthermore, M r. M uba need not know what specific sentence he will receive
before his waiver can be valid. Hahn, 359 F.3d at 1326-27. Based on the
language of the plea agreement and his reaffirmation of the plea agreement’s
provisions during the Rule 11 colloquy, we conclude M r. M uba knowingly and
voluntarily waived his right to appeal his sentence.
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Accordingly, we GRANT the government’s motion to enforce the plea
agreement and DISM ISS the appeal. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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