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

                           FOR THE TENTH CIRCUIT                      January 29, 2014

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

             Plaintiff - Appellee,

v.                                                        No. 13-3269
                                                (D.C. No. 2:12-CR-20119-CM-1)
JONATHAN BRUMBACK,                                          (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.


      After entering into a plea agreement that included a waiver of his right to

appeal, Jonathan Brumback pleaded guilty to one count of conspiracy to distribute

and possess with intent to distribute more than 50 grams of methamphetamine, in

violation of 21 U.S.C. § 846. The district court sentenced him to 250 months of

imprisonment, which was below the advisory Guidelines range. Mr. Brumback


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
appealed. The government has moved to enforce the appeal waiver under United

States v. Hahn, 359 F.3d 1315, 1325, 1328 (10th Cir. 2004) (en banc) (per curiam).

In response, through his counsel, Mr. Brumback asserts that the waiver should not be

enforced because the government breached its obligation under the plea agreement to

move for a three-level reduction of his offense level for acceptance of responsibility.

      “Because an appellate waiver is not enforceable if the Government breaches its

obligations under the plea agreement, we must first address whether the

Government’s conduct during sentencing constituted a breach.” United States v.

Trujillo, 537 F.3d 1195, 1200 (10th Cir. 2008) (internal quotation marks omitted).

Generally our review is de novo. See id. But Mr. Brumback did not argue before the

district court that the government breached the plea agreement. Therefore, our

review is for plain error. See Puckett v. United States, 556 U.S. 129, 136 (2009).

Plain-error reviews involves “four steps, or prongs”: “an error or defect” that is

“clear or obvious, rather than subject to reasonable dispute,” that has “affected the

appellant’s substantial rights,” and that the court determines, in its discretion,

requires correction because it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 135 (brackets omitted).

      “To determine whether a breach has occurred, we 1) examine the nature of the

promise; and 2) evaluate the promise in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” United States v. Burke,

633 F.3d 984, 994 (10th Cir. 2011) (internal quotation marks omitted). “In


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interpreting a plea agreement, we rely on general principles of contract law.” United

States v. Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008). “We construe any

ambiguities against the government as the drafter of the agreement.” Id. at 1213.

      The plea agreement states:

             5.     Government’s Agreements. In return for the defendant’s
      plea of guilty as set forth herein, the United States Attorney for the
      District of Kansas agrees to the following:

                   ...

                   c.     Recommend the defendant receive a two level
                          reduction in the applicable offense level under
                          U.S.S.G. § 3E1.1 for acceptance of responsibility.
                          If the Court finds the defendant is eligible for that
                          reduction and the defendant’s offense level is 16 or
                          greater, then the United States will move at the time
                          of sentencing for the defendant to receive an
                          additional one level reduction for acceptance of
                          responsibility because he timely notified the
                          government of his intention to enter a plea of guilty,
                          provided he enters his guilty plea by December 17,
                          2012 . . . .

              The government’s obligation concerning its agreements listed in
      this paragraph are contingent upon the defendant’s continuing
      manifestation of acceptance of responsibility as determined by the
      United States. If the defendant denies or gives conflicting statements as
      to his involvement, falsely denies or frivolously contests relevant
      conduct that the court determines to be true, . . . or engages in additional
      criminal conduct, the United States reserves the right to request a
      hearing to determine if the defendant has breached this agreement.

             If the Court finds the defendant has breached this plea agreement
      or has otherwise failed to adhere to its terms, the United States shall not
      be bound by this paragraph . . . .




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Mot. to Enforce, Attach. C at 4-5. Mr. Brumback argues that the government’s

obligation to recommend the reduction for acceptance was free-standing and not

contingent. He asserts that the contingency allowing the government to seek a

declaration of breach was limited to the government’s “agreements listed in this

paragraph,” i.e., the actual paragraph containing the contingency, and did not apply

to the promise to recommend the reduction, which is in the preceding paragraph.

       Even if there were error, it would not be a plain error. Although ambiguities

must be construed against the government, Mr. Brumback’s interpretation is not a

reasonable understanding of the plea agreement. The only reasonable understanding

of “this paragraph,” as used in the phrase “[t]he government’s obligation concerning

its agreements listed in this paragraph,” is that “this paragraph” refers to all of the

text in the section (or “paragraph”) identified with the number 5 and the title

“Government’s Agreements.” Id. at 4. Otherwise the contingency would be of no

effect, because as Mr. Brumback points out, the government’s obligations and

agreements are listed in the text above the contingency language. Contracts should

not be construed in such a way as to make provisions meaningless. See Restatement

(2d) of Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable,

lawful, and effective meaning to all the terms is preferred to an interpretation which

leaves a part unreasonable, unlawful, or of no effect.”).

       Because Mr. Brumback’s sole argument regarding the government’s alleged

breach fails, the next issue is the enforceability of the appeal waiver under Hahn’s


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three factors: “(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.” 359 F.3d at 1325. Mr. Brumback, however, makes no argument

regarding these factors, and we need not consider Hahn factors that a defendant does

not challenge. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).

      The motion to enforce is granted and the appeal is dismissed.


                                               Entered for the Court
                                               Per Curiam




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