                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 13, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 11-1187
          v.                                            (D. Colorado)
 MARK JUSTIN DENNY,                          (D.C. No. 1:06-CR-00471-CMA-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      After being indicted for assault causing bodily injury to an employee of a

federal high-security penitentiary engaged in the performance of official duties, in



      *
       This order and judgment is not binding precedent, except under the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.
violation of 18 U.S.C. §§ 111(a)(1) and (b), defendant and appellant Mark Justin

Denny pled guilty and was sentenced to forty-two months’ imprisonment. He

appeals his sentence, which we dismiss for lack of jurisdiction.



                                 BACKGROUND

      Following his indictment, Mr. Denny underwent extensive pre-trial mental

health examinations and competency determinations. Ultimately, he was

determined to be competent to enter into a plea agreement with the government,

pursuant to Fed. R. Crim. P. 11(c)(1)(C). The agreement provided for a sentence

not to exceed forty-two months, based on Mr. Denny’s documented mental health

problems and the parties’ estimate of the applicable advisory sentencing range

under the United States Sentencing Commission, Guidelines Manual (“USSG”),

derived from the facts of the offense and Mr. Denny’s then-known criminal

history.

      When the United States Probation Office prepared a presentence report

(“PSR”) in anticipation of sentencing, it was discovered that, because

Mr. Denny’s extensive criminal history included multiple felony convictions for

crimes of violence, and because the instant offense was a crime of violence,

Mr. Denny was a career offender under USSG §4B1.1. This resulted in assessing

him a total offense level of 29, which, with a criminal history category of VI,

yielded an applicable advisory guideline range of 151 to 188 months. Mr. Denny

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made numerous objections to the PSR, including challenging virtually his entire

criminal history.

      Prior to sentencing, Mr. Denny filed a motion for a downward departure to

a two-year sentence. He then filed a motion to dismiss the indictment against him

entirely.

      At sentencing on April 21, 2011, the district court found that the guideline

calculations in the PSR were correct, including the classification of Mr. Denny as

a career offender. Despite that, the court accepted the plea agreement and

sentenced Mr. Denny to forty-two months, in accordance with the agreement.

Mr. Denny’s various motions were denied.

      Mr. Denny filed this appeal, and the government has filed a motion to

dismiss the appeal for lack of jurisdiction. Mr. Denny claims that the district

court’s application of the two-level enhancement for “bodily injury” under

USSG §2A2.4(b)(2), in a case where enhanced penalties for “bodily injury” had

already been automatically applied in accordance with the statute of conviction,

18 U.S.C. §§ 111(a) and (b), resulted in impermissible double-counting, rendering

his sentence unreasonable.

      The government argues that (1) pursuant to 18 U.S.C. § 3742(a) and (c), we

lack jurisdiction to review a sentence imposed by a district court pursuant to a

Fed. R. Crim. P. 11(c)(1)(C) plea agreement; (2) even if, arguendo, the sentence

had been imposed under the Guidelines, as opposed to the Rule 11(c)(1)(C) plea

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agreement, and we had jurisdiction to hear this appeal, the application of the two

“bodily injury” sentencing enhancements did not constitute impermissible double-

counting. We address the jurisdictional question first, as it may be dispositive.



                                   DISCUSSION

      Under Fed. R. Crim. P. 11(c)(1)(C), the defendant and the government may,

in structuring a guilty plea, “agree that a specific sentence or sentencing range is

the appropriate disposition of the case, . . . (such a recommendation or request

binds the court once the court accepts the plea agreement.).” United States v.

Silva, 413 F.3d 1283, 1284 (10th Cir. 2005). “Where a defendant agrees to and

receives a specific sentence, that defendant may only appeal the sentence if it was

(1) imposed in violation of the law, (2) imposed as a result of an incorrect

application of the guidelines, or (3) is greater than the sentence set forth in the

plea agreement.” Id. (citing 18 U.S.C. § 3742(a) and (c)); see also, United States

v. Denogean, 79 F.3d 1010, 1013-14 (10th Cir. 1996). Otherwise, we lack

jurisdiction over the appeal.

      The government has filed a motion to dismiss this case on the ground that

Mr. Denny cannot establish any of those three requirements to enable him to

appeal. Mr. Denny responds that, because the plea agreement provided for a

sentence “of no more than 42 months,” it was not a “specific sentence” for

purposes of § 3742, and therefore he was not bound by the strictures of that

                                          -4-
statute. Mr. Denny concedes there are no Tenth Circuit cases on this issue, and

points to one case from another Circuit which suggests that a sentence similar to

Mr. Denny’s could not qualify as a “specific sentence.” See United States v.

Newsome, 894 F.2d 852, 855 (6th Cir. 1990). We, and many other Circuits, have

allowed sentencing ranges to qualify as specific sentences. See United States v.

Veri, 108 F.3d 1311, 1313-14 (10th Cir. 1997) (collecting cases).

       In the particular and unusual circumstances of this case, we choose not to

delve into this issue and resolve whether a sentence of “up to 42 months”

qualifies as a “specific sentence” for the purpose of 18 U.S.C. § 3742. 1 Nobody

below raised an issue about whether this plea agreement involved a specific

sentence; rather, it is clear that everyone assumed it was. Thus, in the extremely

strange factual situation of this case, we will follow the usual rule when there is a

valid Rule 11(c)(1)(C) plea agreement and thus conclude we lack jurisdiction over

this appeal. 2



       1
       This case is partly unusual because Mr. Denny complains about a sentence
which, in fact, bestowed a huge windfall on him. He should have been sentenced
as a career offender, facing a long, multi-year sentence. Yet, due to the initial
oversight by the government, he received a forty-two month sentence, which the
government acquiesced in.
       2
       Were we to assume we have jurisdiction, we would still uphold Mr.
Denny’s sentence. He argues about a modest double-counting issue, whereas, as
the government points out, any sentence calculated, with or without the double-
counting of a “bodily injury” circumstance, would have been trumped by the
career offender provisions. So, any error in the double-counting issue would have
been harmless.

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                          CONCLUSION

For the foregoing reasons, we DISMISS this case for lack of jurisdiction.

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




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