                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         November 28, 2006
                                       TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                         No. 05-3238
          v.                                                   D. Kansas
 WILLIAM YOUNG, also known as                       (D.C. No. 03-CR-20116-KHV)
 Smurf,

               Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BEAM,** Circuit Judges.




      In this direct criminal appeal, William Young challenges both the sentence

imposed following his plea of guilty and the enforceability of a waiver of appeal

contained in his plea agreement. Young argues that he entered into the agreement

because of misinformation provided to him by his prior attorney and that the government

breached one of the terms of the sentencing accord. Also pending is the government's




      *
        This order and judgment is not binding precedent, except under the doctrines of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.
      **
       The Honorable C. Arlen Beam, United States Circuit Judge, Eighth Circuit Court
of Appeals, sitting by designation.
motion for enforcement of the waiver agreement, filed after Young's appeal. Having

jurisdiction under 28 U.S.C. § 1291, we grant the government's motion and dismiss the

appeal.

I.     BACKGROUND

       Young entered a plea of guilty to one count of conspiracy to distribute and possess

with intent to distribute five grams or more of cocaine base. The plea agreement, dated

December 16, 2003, contains a broad waiver of appellate rights as well as a concession by

Young that he entered into the agreement knowingly and voluntarily. But, as part of the

undertaking, the government agreed to "not request an upward departure from the

applicable sentencing guideline range if the defendant agrees not to request a downward

departure."

       In the presentence investigation report (PSR) and again at the March 8, 2004,

sentencing hearing, Young challenged the PSR on two grounds: the inclusion of an

adjustment for Young's leadership role in the conspiracy and his status as a career

offender based, in part, on a state court conviction for attempted aggravated battery, an

offense for which he received a suspended sentence of eleven months' incarceration. At

the time Young entered into the plea agreement, his counsel advised him that his base

offense level would most likely be 26. The district court calculated a final offense level

of 29 and on March 11, 2004, sentenced Young at the low end of the guideline range, 151

months' imprisonment. Young did not file a timely appeal from the March 2004

judgment.

                                            -2-
       On August 6, 2004, Young filed a pro se motion seeking new counsel and leave to

assert an appeal out of time, which motion was denied by the district court on September

7, 2004. On January 25, 2005, Young filed a pro se motion to vacate his sentence under

28 U.S.C. § 2255, claiming ineffective assistance of counsel based upon his former

attorney's failure to timely appeal from the March 2004 sentence as allegedly directed by

Young.1 The government responded to the motion to vacate on January 28, 2005, with a

motion to enforce the plea agreement. On April 4, 2005, the district court "overruled" the

government's motion to enforce the plea agreement and set the matter for an evidentiary

hearing. Ultimately, on June 10, 2005, the trial court granted Young's section 2255

motion, vacated the March 11, 2004, judgment and directed the clerk of court to reenter

judgment on the same conditions as the previous judgment so that Young could file a

timely notice of appeal. This action, then, is a direct appeal from the June 2005 judgment

and raises Young's substantive claims in a timely fashion.

       Four months after Young filed his timely notice of appeal, the government again

filed a motion to enforce the plea agreement, which motion we consider today. Young

responds to the government's motion to enforce, contending that the government waived

its opportunity to file this motion because it did not appeal when, on April 4, 2005, the

district court denied the earlier motion to enforce and set the matter for an evidentiary

       1
        As relevant, Young claimed his counsel was ineffective for failing to appeal based
upon (1) the government's alleged breach of the plea agreement at sentencing, (2) the
involuntariness of Young's plea, and (3) the insufficiency of evidence supporting Young's
ultimate sentence. Young dropped the second and third grounds at the June 6, 2005,
evidentiary hearing.

                                             -3-
hearing. Young further argues that should we decide to address the government's motion

to enforce on the merits, the filing was untimely and the government breached the plea

agreement.

II.    DISCUSSION

       A.     Government's Alleged Waiver

       As earlier noted, the government first sought to enforce the plea agreement shortly

after Young filed his pro se section 2255 motion in January 2005. The district court

overruled that motion in its April 2005 order. The district court correctly noted in this

April holding that Young's waiver of the right to appeal or collaterally attack his sentence

did not preclude Young's argument that his prior counsel was ineffective. Because there

was little information on whether Young's lawyer specifically disregarded Young's

instructions to appeal and on whether defects in the 2004 sentencing proceeding occurred,

the district court set the matter for an evidentiary hearing.

       The district court's April 4, 2005, denial of the government's first motion to

enforce the plea agreement merely set the stage for an evidentiary hearing on Young's

section 2255 motion.

       Following the evidentiary hearing, the district court sustained Young's section

2255 request and, in that same order, directed the clerk to reenter judgment so that Young

could file a direct appeal. The district court addressed nothing else.

       The government's failure to appeal the district court's April 4, 2005, order did not

constitute a waiver of any of the arguments it now raises in its motion for enforcement of

                                              -4-
the plea agreement. Further, because the district court granted Young's requested relief

and immediately vacated and reentered his sentence, which action was followed by

Young's timely appeal, the government exercised its only opportunity to file its motion to

enforce with this court.2 Indeed, it became the government's obligation to invoke the

waiver agreement in this court. United States v. Calderon, 428 F.3d 928, 930-31 (10th

Cir. 2005).   B.      Government's Alleged Breach

       Having determined that the government did not waive its right to file a motion to

enforce the plea agreement, we next address whether the government breached the

agreement. If the government indeed breached, Young is no longer bound by the

contract. 17 Am. Jur. 2d Contracts §§ 606, 684 (2004).

       But, we have not yet determined in this circuit whether a party has the right to

pursue an alleged breach of a plea contract in the face of a wavier of appeal. We now

join our sister circuits in holding that a defendant's waiver of the right to appeal or

collaterally attack his sentence does not preclude an appellate argument that the

       2
        The fact that the government filed the instant motion four months after Young's
direct appeal does not affect our current review. Circuit Rule 27.2(A) provides that the
motion to enforce the plea agreement must be filed within 15 days after the notice of
appeal is filed. However, we have been lenient in allowing these "motions to enforce,"
whether or not the party seeking to enforce the agreement strictly follows the local
requirements for doing so. United States v. Clayton, 416 F.3d 1236, 1238 (10th Cir.
2005) (refusing to hold the government to the 15-day period for filing a motion to enforce
a plea agreement when it was raised in a brief, not a motion, and at a point well beyond
the Rule 27.2(A) 15-day time period), cert. denied, 126 S. Ct. 1110 (2006). Rule 27.2(A)
allows a motion to be filed later upon a showing of good cause. The government has
explained that it needed to wait until it received the sentencing transcript before it could
determine whether or not the plea agreement had been breached. This sufficiently
explains any delay.

                                              -5-
government breached the plea accord. United States v. Bowe, 257 F.3d 336, 342 (4th Cir.

2001); United States v. Rosa, 123 F.3d 94, 98 (2d Cir. 1997); United States v. Gonzalez,

16 F.3d 985, 988-90 (9th Cir. 1993). Practically, this preserves the public policy

constraints that bear upon the enforcement of other kinds of contracts. Rosa, 123 F.3d at

98. To determine whether the government breached this plea agreement, we examine the

nature of the government's promise and evaluate the promise in light of Young's

reasonable understanding of the promise at the time the guilty plea was entered. United

States v. Peterson, 225 F.3d 1167, 1170-71 (10th Cir. 2000). "Principles of general

contract law guide our analysis of the government's obligations under the agreement." Id.

at 1171. Whether the conduct at issue violated the plea agreement is a question of law

reviewed de novo. Id. at 1170.

       Young's plea contract contains an agreement by the government to recommend a

sentence at the low end of the applicable guideline range and an agreement not to request

an upward departure from the applicable range if Young, in turn, agreed not to request a

downward departure. The PSR determined that Young was a leader in the conspiracy and

that he was a career offender. Under sentencing guideline terminology, this is the stuff of

enhancement or adjustment, not departure.

       Young argues that at the time of the plea agreement, he was not aware of, nor was

he instructed on, the distinction between an enhancement and a departure. His reasonable

understanding, he says, was that the government would do nothing to request a higher

sentence than the one contemplated by Young when he entered his plea. The offense

                                            -6-
level anticipated by Young and the government at that time was 26. He claims that the

government's support of the adjustment for Young's role in the offense, although not

explicitly prohibited by the "departure" language in the plea agreement, violated the spirit

of the plea and constitutes a breach. He further argues, erroneously, that the government's

actions in support of the career offender provision were an outright breach of the

agreement, because an application of the career criminal language constitutes a departure

under the guidelines.

       By its terms, the government acted in accordance with the agreement. The plea

agreement unambiguously lacks any promise by the government not to recommend

sentencing adjustments that could cause Young's sentence to increase. It merely prohibits

the government from advocating a departure, which the government did not do. Compare

U.S.S.G. § 1B1.1 cmt.1(E) (defining "departure" as the imposition of a sentence outside

the applicable guideline range or of a sentence that is otherwise different from the

guideline sentence) with §§ 2A1.1 et seq. (discussing adjustments made to offense levels

upwards and downwards within the applicable guideline range); United States v. Moreno-

Trevino, 432 F.3d 1181, 1184 (10th Cir. 2005) (providing an example of a court's

application of adjustments and departures).

       We are also unpersuaded by Young's claim of surprise at the district court's

application of the guidelines regarding Young's role in the offense and the career offender

provisions. Paragraph fourteen of the agreement specifically provides that the

government may respond to comments made or positions taken by the defendant or

                                              -7-
defendant's counsel, and that it could correct any misstatements or inaccuracies. The

adjustment for Young's role in the offense as well as the application of the career offender

provisions were reasonable calculations arrived at through a straightforward guideline

application; an application that Young specifically agreed to in his plea. The government

was not precluded from responding to Young's challenges to those portions of the PSR at

sentencing. See United States v. Rodriguez-Delma, 456 F.3d 1246, 1247, 1249-51 (10th

Cir. 2006) (holding that the government did not breach its agreement not to oppose the

defendant's contention that his base offense level not be increased for his role in the

offense because the government was merely discussing the scope of the defendant's

criminal activities in an attempt to inform the court, and that discussion "did not rise to

the level of advocacy" for the role enhancement).

       Likewise, here, the government was responding to Young's objection to the role in

the offense enhancement. At the hearing, the government responded to Young's counsel's

assertion that "for the life of [him]," he could not understand why the enhancement

applied. The government responded to the particular concerns raised by Young's lawyer

acknowledging that Young was a leader in this enterprise. As to the career offender

provision, the government only responded in writing to Young's objection that "it's not

fair" to apply that status to him, stating simply that there was no legal basis for the court

to decline to accept Young's conviction as a violent felon. At sentencing, Young's

counsel again argued that "darn it, it just isn't fair" that an application of the career

offender provisions mandated a heavier sentence. The district court, however, overruled

                                               -8-
the contention without comment from the government. These responses neither provided

a prohibited "legal characterization" of the facts nor argued their effect to the sentencing

judge. Peterson, 225 F.3d at 1172. The government only drew the court's attention to

facts contained in the PSR. Accordingly, the government did not breach the agreement as

Young alleges.

       C.     Pending Motion to Enforce

       Finally, because the government did not breach the plea agreement, we reach the

merits of the pending motion to enforce. Young claims that we should not enforce this

agreement because he did not enter into the plea agreement knowingly and voluntarily.

       Whether Young's plea was knowing and voluntary is a question of law we review

de novo. United States v. Asch, 207 F.3d 1238, 1242 (10th Cir. 2000). "Given the

importance of plea bargaining to the criminal justice system, we generally enforce plea

agreements and their concomitant waivers of appellate rights." United States v. Hahn,

359 F.3d 1315, 1318 (10th Cir. 2004). In Hahn, we held that in reviewing the

enforceability of appeal waivers, the court will determine "(1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether 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. As to the second prong, we

examine the language of the plea agreement itself and whether it states that the defendant

entered the agreement knowingly and voluntarily, along with the Rule 11 colloquy that

occurred at the time the plea was made. Id.

                                              -9-
       Here, Young's appeal falls within the scope of the appellate waiver and the waiver

language states that Young entered into it knowingly and voluntarily. Accordingly, our

query is informed by Young's colloquy with the district court at the time it accepted

Young's guilty plea, as well as our own determination that enforcing this agreement

would not result in a miscarriage of justice.

       Young bears the burden of presenting evidence that he did not understand the

waiver. Id. at 1329. He does not meet that burden here. Young claims that his plea was

not entered into knowingly and voluntarily (1) because counsel did not advise him of the

possible applicability of the career offender provisions prior to his guilty plea–essentially

an ineffective assistance of counsel claim, and (2) because certain comments by the

district court "could have been reasonably interpreted by the defendant to mean that his

prior conviction would have no consequence on the current charge to which he was

pleading."

       We review a challenge to Young's plea based upon a claim of ineffective

assistance of counsel using the two-part test announced in Strickland v. Washington, 466

U.S. 668 (1984). Under this test, Young must show that his prior counsel's performance

"fell below an objective standard of reasonableness," id. at 688, and that the deficient

performance resulted in prejudice in the guilty plea context. Id. at 691. "To show

prejudice in the guilty plea context, [Young] must establish that 'there is a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and insisted on




                                             -10-
going to trial.'" United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993) (quoting Hill

v. Lockhart, 474 U.S. 52, 59 (1985)).

       Young fails to demonstrate that prior counsel's alleged failure to advise Young

about the potential application of the career offender provision constituted ineffective

assistance of counsel entitling him to relief. "A miscalculation or erroneous sentence

estimation by defense counsel is not a constitutionally deficient performance rising to the

level of ineffective assistance of counsel." Id.

       Additionally, a review of the plea colloquy demonstrates that Young understood

the rights he was waiving and the terms of the plea agreement and that the court would

review his past criminal record in arriving at a sentence.3 Young indicated that he knew

the consequences of a guilty plea and that he was satisfied with his counsel's

representation. The court explained that its final calculation of Young's sentence could

differ from any calculation made by Young's attorney and that anything discovered

during the presentence investigation could have a "big effect," unanticipated by counsel,

on Young's final sentence. The court also made it clear to Young that by waiving his

appeal rights, if a disagreement ensued about which sentencing guidelines apply, he

would be unable to do anything about it and that, ultimately, the court was not bound in

any way by the suggestions agreed upon in the agreement. When asked, Young

responded that he understood that the court could take into account many things at

       3
         We note that there was not a second plea colloquy on June 10, 2005, the date the
district court granted Young's section 2255 relief and vacated and reinstated the original
sentence. Accordingly, we look to the colloquy of the original sentence.

                                            -11-
sentencing, including his past criminal record and his role in the offense relative to the

roles others played.

       This colloquy leaves us with no doubt that Young's plea was knowing and

voluntary. And, Young demonstrated no prejudice–that but for these alleged errors of his

counsel, he would not have pleaded guilty and insisted on going to trial. Lockhart, 474

U.S. at 59. Finally, enforcing this plea agreement would not result in a miscarriage of

justice. See Hahn, 359 F.3d at 1327 (setting out situations where miscarriage of justice

occurs).

III.   CONCLUSION

       For the reasons stated herein, we grant the pending motion for enforcement of plea

agreement and dismiss the appeal.

                                                         ENTERED FOR THE COURT

                                                         C. Arlen Beam
                                                         Circuit Judge




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