                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 10, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 11-5139
 v.
                                              (D.C. No. 4:11-CR-00043-CVE-3)
                                                         (N.D. Okla.)
 JAMES WADE SULLIVAN, a/k/a
 Mailman, a/k/a James Sullivan,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Facing several drug and conspiracy charges, James Sullivan struck a deal.

In return for the government’s agreement to reduce his offense level, Mr. Sullivan

promised to plead guilty — and to waive “the right to directly appeal” any

sentence he might receive so long as it fell within the district court’s statutory




      *
         After examining the briefs and the appellate record, 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
power to issue. Despite this agreement, Mr. Sullivan now seeks to appeal his

sentence, even though it was admittedly a statutorily permissible one.

      Mr. Sullivan must have been pleased when, after he struck his deal, the

district court decided to place him on probation. Under the applicable statutes,

the court could have sentenced him to decades behind bars, and the government

had asked the court to impose a prison term of at least a year. But Mr. Sullivan

was likely less than pleased when the probation office noted his statutory

eligibility for special sex offender probation conditions due to his previous 2001

sex offense conviction. And he was not at all pleased when the district court

decided to impose certain sex offender probation conditions described in a 2008

order issued by all members of the Northern District of Oklahoma. Under the

terms of that order, sex offenders placed on probation may be required to undergo

testing and therapy, gain a probation officer’s approval to have contact with

children or possess pornography, and submit to monitoring of their computer

activity. These are the conditions placed on his probation Mr. Sullivan now seeks

to undo in this appeal.

      For its part, the government says we cannot hear the merits of Mr.

Sullivan’s appeal because he waived the right to contest any sentencing

conditions within the district court’s statutory authority to impose — and the

conditions he seeks to challenge were within the district court’s authority to

impose on previously convicted sex offenders. Seeking to avoid the force of this

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syllogism, Mr. Sullivan does not dispute his statutory eligibility for the probation

conditions imposed on him but offers various other replies instead.

      First, he argues the government waived its right to enforce his appellate

waiver — a waiver of the waiver, if you will. In Mr. Sullivan’s estimation, the

government waived its right to forestall this appeal by (1) failing to file a motion

in this court seeking to enforce the plea agreement’s appellate waiver provision,

and (2) declining to oppose in the district court Mr. Sullivan’s request to stay the

imposition of the sex offender probation restrictions pending the resolution of this

appeal. Taken together, he argues, these actions (or inactions) imply the

government’s intent to relinquish its right to enforce the appellate waiver

contained in his plea agreement.

      We cannot agree. Our rules and precedents indicate that the government

may, before presenting its appellate brief on the merits, file with this court a

motion to enforce an appellate waiver found in a plea agreement. This process

sometimes permits the early resolution of cases without the need for full merits

briefing. But our rules and precedents also make clear the government does not

waive its right to enforce an appellate waiver by raising the issue for the first time

in its brief on the merits: “Failure to file a timely motion to enforce an appeal

waiver does not preclude a party from raising the issue in a merits brief.” 10th

Cir. R. 27.2(A)(3); see also United States v. Clayton, 416 F.3d 1236, 1238-39

(10th Cir. 2005) (same). The government’s merits brief in this case expressly

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invokes the appellate waiver against Mr. Sullivan. Given that and the teachings

of our rules and precedents, we see no way we might infer on the government’s

part any intent to relinquish its rights under the plea agreement.

      Neither does Mr. Sullivan identify any authority for the proposition that a

party’s acquiescence to a stay of a district court’s sentence pending appeal

intentionally relinquishes the right to contest an appeal of that order. And for

good reason. A party’s willingness to accede to a delay in the enforcement of a

district court’s judgment does not necessarily betoken or betray an intent to

relinquish any right to its eventual enforcement. Surely parties can (and from

time to time do) agree to defer enforcing favorable judgments for a period of

time, pending the outcome of an appeal, without losing their entitlement to those

judgments entirely and forever.

      Even if the government hasn’t waived its right to enforce the plea

agreement, Mr. Sullivan argues it still isn’t enforceable. Under this court’s

precedents, an appellate waiver contained in a plea agreement is enforceable so

long as (1) the disputed appeal falls within the scope of the waiver, (2) the

defendant knowingly and voluntarily waived his right to appeal, and (3) enforcing

the waiver would not result in a miscarriage of justice. United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). In Mr. Sullivan’s view, his

appellate waiver fails both the first and second prongs of this test.




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      On the first prong, Mr. Sullivan argues that any doubts about whether his

probation restrictions fall within the scope of his appellate waiver must be

resolved against the government. His plea agreement was a contract of adhesion,

he insists, with terms the government imposed on him. And when it comes to

adhesion contracts, he says, ambiguities should be resolved against the drafter and

in accord with the “reasonable expectations” of the party on whom the contract

was imposed.

      Whatever other problems may attend this line of argument, the authority

Mr. Sullivan asks us to rely upon, Max True Plastering Co. v. U.S. Fid. & Guar.

Co., 912 P.2d 861 (Okla. 1996), undoes it. That case, coming from Oklahoma

where Mr. Sullivan struck his plea agreement, indicates that the “reasonable

expectations” of the party on whom an adhesion contract is imposed control only

when the challenged contractual language is “ambigu[ous]” or when its

“exclusions are obscure or technical or . . . hidden.” Id. at 868. In the plea

agreement at issue here, however, Mr. Sullivan unambiguously and quite plainly

waived the right to appeal any sentence permitted by statute. Just as plainly,

probation conditions are parts of a defendant’s sentence. United States v.

Sandoval, 477 F.3d 1204, 1207 (10th Cir. 2007) (“Supervised-release conditions

are part of the sentence . . . . ‘[T]he word “sentence” encompasses both prison

time and periods of supervised release.’”) (citation omitted). Neither (again) does

Mr. Sullivan dispute that the probation conditions the district court imposed were

                                         -5-
within its statutory power to issue on a previously convicted sex offender like

himself. Given this, there is simply no ambiguity to construe against anyone in

this case.

      Even if his appellate waiver survives Hahn’s first prong, Mr. Sullivan

submits it fails the second because he did not knowingly and voluntarily agree to

a sentence including the probation conditions the district court imposed.

Admittedly, he agreed to forgo any challenge to the sentence the district court

might impose unless it exceeded the statutory maximum. Admittedly, the

sentence he received, including the challenged probation restrictions, was within

the court’s statutory power to impose. Admittedly, he confirmed at his Rule 11

plea colloquy with the court that his decision to forgo any attack on a statutorily

permissible sentence was knowing and voluntary. Still, Mr. Sullivan emphasizes,

neither the plea agreement nor his plea colloquy with the court addressed the

particular possibility of sex offender probation restrictions.

      The difficulty with Mr. Sullivan’s submission is that, when it comes to

assessing whether an appellate waiver was knowing and voluntary, our controlling

precedents warn against “focusing on the result of a proceeding, rather than on

the right relinquished, in analyzing whether an appeal is unknowing or

involuntary.” Hahn, 359 F.3d at 1326 & n.12. Our precedents also indicate that

an appellate waiver is valid even if the defendant was not aware of “the specific

detailed consequences” of invoking the waived right, so long as he understood

                                         -6-
“the nature of the right and how it would likely apply in general in the

circumstances.” Hahn, 359 F.3d at 1327 (quoting United States v. Ruiz, 536 U.S.

622, 629-30 (2002)) (emphasis in original).

      That test was met in this case. Mr. Sullivan indicated his intent to

relinquish any appeal of a statutorily permissible sentence. He was expressly

informed in his Rule 11 colloquy that his sentence could include a term of

probation, and that conditions could be imposed on his probation. In these

circumstances, it is apparent that Mr. Sullivan understood the nature of the right

he waived (appealing any portion of his sentence, including any probation

restrictions) and was made generally aware of how it might apply (leaving him

without recourse to contest on direct appeal any sentence, including any probation

restrictions, within the court’s statutory power to issue). The particular sex

offender restrictions imposed here are precisely the sort of “specific, detailed

consequences” Hahn says a sentencing court need not discuss in its Rule 11

colloquy. (Even so, it is apparent the court made at least some effort to highlight

them. In its 2008 order, the court sought to alert in advance those with prior sex

offense convictions of the restrictions they might expect while serving probation.)

      Mr. Sullivan replies with a parade of horribles. If we hold his appellate

waiver broad enough to encompass this appeal, he insists, it means his waiver is

so all-encompassing that the district court just as easily could have sentenced him

to a term of imprisonment within the statutory maximum and ordered him to be

                                         -7-
chained during that whole period, employed at painful labor, denied any medical

or other assistance, and disqualified for life from owning property.

        He is surely mistaken. The terms of his appellate waiver limited the

district court to sentences within the maximum permitted by statute. Mr. Sullivan

points to no statute that would permit a court to impose the sort of sentencing

conditions he imagines. Mr. Sullivan also neglects Hahn’s third and final inquiry,

which permits this court to overturn even knowing and voluntary appellate

waivers to correct miscarriages of justice. See Hahn, 359 F.3d at 1327. It would

undoubtedly be a miscarriage of justice to allow the imposition of a sentence

unauthorized by statute. And it would be no less a miscarriage to permit a

sentence that, while statutorily authorized, offends the Eighth Amendment (in

fact, the sentence he describes long ago was found impermissible under the

Eighth Amendment, see Weems v. United States, 217 U.S. 349 (1910)). None of

these disqualifying difficulties, however, applies to the lawful sentence the

district court issued in this case. To be sure, the sex offender conditions imposed

here might be beyond the court’s authority to issue, statutorily or constitutionally,

in other circumstances to other defendants never convicted of sex offenses. But

that’s an argument with no bearing on Mr. Sullivan who never disputes his

statutory and constitutional susceptibility to the probation conditions he seeks to

undo.




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The appeal is dismissed.

                           ENTERED FOR THE COURT



                           Neil M. Gorsuch
                           Circuit Judge




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