                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        October 2, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-6170
                                                  (D.C. No. 5:13-CR-00035-C-1)
MELISSA R. LOMAN,                                         (W.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.


      Melissa R. Loman was charged with nineteen counts of using a minor to

produce child pornography in violation of 18 U.S.C. § 2251(a). The government

agreed to dismiss eighteen of the nineteen counts in exchange for Ms. Loman

pleading guilty to one count, and waiving her right to appeal or collaterally challenge

her guilty plea, sentence, and any other aspect of her conviction. Ms. Loman entered


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
into the plea agreement with the government and pleaded guilty. She was sentenced

to 360 months’ imprisonment, which was within the advisory guideline sentencing

range.1 In spite of the appellate waiver in her plea agreement, Ms. Loman filed a

notice of appeal. The government has moved to enforce the appeal waiver pursuant

to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

      When reviewing a motion to enforce, we consider “(1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether the

defendant knowingly and voluntarily waived [her] appellate rights; and (3) whether

enforcing the waiver would result in a miscarriage of justice.” Id. at 1325.

Ms. Loman concedes that her appeal is within the scope of the waiver, that her

waiver was knowing and voluntary, and that enforcing the waiver would not result in

a miscarriage of justice. She argues, however, that the district court did not explicitly

accept the plea agreement, and failed to comply with Fed. R. Crim. P. 11(c)(4). She

contends that these deficiencies defeat the government’s motion to enforce the appeal

waiver.

      A district court must accept a plea agreement before it becomes binding. See

United States v. Novosel, 481 F.3d 1288, 1292 (10th Cir. 2007). But the court does


1
       Ms. Loman’s guideline range was 360 months to life imprisonment, but it was
reduced to 360 months because that was the statutory maximum. The guideline range
included enhancements for multiple victims; a victim being under the age of 12;
commission of a sexual act or sexual contact upon a victim; distribution of the
material; and having a special relationship with the victims (Ms. Loman is the mother
of the three victims).


                                          -2-
not need to expressly accept the agreement if its actions demonstrate constructive

acceptance of the plea agreement. See United States v. Leyva-Matos, 618 F.3d 1213,

1216 n.1 (10th Cir. 2010); United States v. Smith, 500 F.3d 1206, 1213 n.3

(10th Cir. 2007). The government concedes that the district court never explicitly

stated that it accepted the plea agreement, but the government asserts that the court

constructively accepted the agreement. We agree.

      In Smith, we noted that “the District Court did not expressly state on the record

that it was ‘accepting’ or ‘rejecting’ the plea agreement.” 500 F.3d at 1213 n.3. But

we explained that “[t]he court did . . . operate within the terms of the plea agreement,

questioning Ms. Smith with respect to its terms during the Rule 11 colloquy and

dismissing, as provided in the plea agreement, the five other counts set forth in the

superseding indictment.” Id. We therefore concluded that “these actions amount to

constructive acceptance of the plea agreement.” Id.

      The circumstances are similar here. At the change-of-plea hearing, the district

court noted that the “plea is being entered pursuant to a plea agreement,” Mot. to

Enforce, Att. 2 at 12, and that the plea agreement “ha[d] been reduced to writing,” id.

at 13. The court then directed the government to summarize the substantive portions

of the agreement. That summary included the government’s promise to dismiss

Counts 1 through 6 and 8 through 19 of the indictment, and to not prosecute

Ms. Loman for other child-pornography-related crimes occurring between April 19,

2011 to February 1, 2013. After the summary, the district court stated, “Ms. Loman,


                                          -3-
this appears to be a simple quid pro quo. You agree to plead guilty to Count 7, the

government agrees to dismiss the remaining counts.” Id. at 15. The district court

also asked if the written plea agreement contained all of the agreements between the

parties and counsel for Ms. Loman replied, “Yes.” Id. at 16. And, on questioning by

the district court, Ms. Loman agreed that the written plea agreement contained all of

the agreements and promises that had been made to her. The court emphasized to

Ms. Loman that only the promises contained in the written plea agreement were

enforceable. At the end of the hearing, the district court accepted Ms. Loman’s

guilty plea.

       Consistent with the plea agreement, the minutes from the change-of-plea

hearing reflect that Ms. Loman pleaded guilty to Count 7 of the indictment, and that

Counts 1-6 and 8-19 would be dismissed at sentencing. At sentencing, the district

court announced its sentence and referenced the plea agreement, stating, “I advise

you that under the plea agreement you have waived your right of appeal except in

certain very limited circumstances.” Mot. to Enforce, Att. 3 at 27. The district court

then implemented the terms of the plea agreement by entering a judgment that

memorialized Ms. Loman’s plea to Count 7 and dismissed the remaining counts.

Although the district court did not expressly state on the record that it was accepting

or rejecting the plea agreement, its actions demonstrate that it was operating within

the terms of the plea agreement and amount to constructive acceptance of the

agreement.


                                          -4-
        As for the alleged Fed. R. Crim. P. 11(c)(4) error, that rule states “[i]f the

court accepts the plea agreement, it must inform the defendant that to the extent the

plea agreement is of the type specified in Rule 11(c)(1)(A) [,where the government

will not bring, or will move to dismiss, other charges,] . . . the agreed disposition will

be included in the judgment.” We agree with the government’s contention that

Ms. Loman was “constructively and effectively notified [by the court’s conduct] that

the agreed disposition, i.e., dismissal of the remaining counts, would be included in

the judgment, thus satisfying Fed. R. Crim. P. 11(c)(4).” Reply to Mot. to Enforce

at 5.

        We acknowledge that it would have been preferable for the district court to

explicitly state that it was accepting the plea agreement and to give the Rule 11(c)(4)

notification. But the district court’s actions in this case demonstrate that it did accept

the plea agreement. Most importantly, the district court operated within the terms of

the plea agreement, and gave Ms. Loman the benefit of her bargain, by dismissing

eighteen of the nineteen counts for which she was charged. Ms. Loman concedes that

she has no valid arguments to challenge the appeal waiver contained in the plea

agreement. Accordingly, we grant the government’s motion and dismiss this appeal.


                                                  Entered for the Court
                                                  Per Curiam




                                            -5-
