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

                            FOR THE TENTH CIRCUIT                         November 12, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-6226
                                                   (D.C. No. 5:18-CR-00068-SLP-1)
 ANDREZ MARCELL HALL,                                        (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges.
                   _________________________________

      The district court sentenced Andrez Marcell Hall to fifty-seven months in

prison and three years of supervised release after he pled guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g). Mr. Hall appeals his

sentence on the ground that the district court erred in applying a four-level

enhancement under USSG § 2K2.1(b)(6)(B), even though his plea agreement

contains a broad waiver of his appellate rights. The government asks this court to



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). We dismiss the appeal based on the waiver.

                               I.     BACKGROUND

      In 2018, Mr. Hall sold cocaine to a criminal informant (CI) during a controlled

buy. The drug transaction took place inside a known drug house, but the CI saw a

firearm in Mr. Hall’s car when the men were walking away from the house and

alerted the police. The police stopped Mr. Hall for traffic infractions and seized a

Glock semi-automatic pistol and ammunition during the traffic stop. After his

indictment for violations of 18 U.S.C. §§ 922(g)(1) and 924(d), Mr. Hall filed a

motion to suppress the seized evidence. The district court conducted an evidentiary

hearing and denied the motion.

      Mr. Hall ultimately pled guilty to a § 922(g)(1) violation. In his plea

agreement, he “knowingly and voluntarily” waived “his right to appeal his guilty

plea, and any other aspect of his conviction.” R., Vol. 2 at 58. He also waived “his

right to appeal his sentence . . . and the manner in which the sentence [was]

determined.” Id. But he reserved his right to appeal (1) the district court’s order

denying his motion to suppress; and (2) the substantive reasonableness of his

sentence, if the court imposed a sentence above the advisory guideline range.

      The district court calculated Mr. Hall’s offense level at 21 and assigned him a

criminal history category of IV, resulting in a guidelines range of fifty-seven to

seventy-one months. In arriving at those numbers, the court added a four-level

enhancement under § 2K2.1(b)(6)(B) because he “possessed the firearm in

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connection with distribution of controlled substances.” R., Vol. 2 at 16 (presentence

investigation report adopted by the district court). Mr. Hall unsuccessfully objected

to the enhancement. The district court sentenced him to fifty-seven months in prison

and three years of supervised release, at the low end of the guideline range.

       Mr. Hall now challenges the enhancement under § 2K2.1(b)(6)(B). For that

guideline to apply, the firearm must facilitate (or have the potential to facilitate)

another felony or be found “in close proximity to drugs.” U.S. Sentencing

Guidelines Manual § 2K2.1(b)(6)(B) cmt. n.14(a), (b) (U.S. Sentencing Comm’n

2018). But here, the firearm was in the car during the drug transaction, and Mr. Hall

contends no record evidence supports the inference of a nexus between the weapon

and narcotics activity. Mr. Hall acknowledges that his sentence was within the

advisory guideline range and does not seek to appeal either of the issues he excepted

from the waiver.

                                  II.    DISCUSSION

       Although this case presents an interesting legal issue, our analysis begins and

ends with Mr. Hall’s waiver of his appellate rights. The enforceability of an appeal

waiver within a plea agreement is a question of law, which we review de novo.

United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008).

       Hahn sets forth three factors to consider in evaluating an appeal waiver:

“(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.”

                                            3
359 F.3d at 1325. The government addresses each of these factors, but Mr. Hall

focuses only on the second one. We limit our analysis accordingly. See United

States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that the court

need not address a Hahn factor if the defendant does not make a corresponding

argument).

      Mr. Hall asks us to find that his waiver was not “knowing and intelligent”

because his “right to appeal the district court’s suppression ruling, which induced

him to plead guilty and waive all other appellate rights, was valueless—and not just

in hindsight, but at the time of the plea.” Aplt. Reply Br. at 1, 4. He explains that his

motion to suppress challenged only one of three underlying traffic violations that led

to the stop; by failing to contest the remaining two, “[h]e effectively conceded that no

Fourth Amendment violation occurred” and thus waived any argument that the

suppression ruling was erroneous. Id. at 2. In other words, he is “effectively barred

from appealing the district court’s [suppression] ruling.”1 Id. at 3.

      In determining whether a defendant knowingly and voluntarily waived his

appellate rights, “we look primarily to two factors . . . : (1) whether the language of

the plea agreement states that he entered the agreement knowingly and voluntarily,

and (2) whether the record reveals an adequate colloquy under Federal Rule of

Criminal Procedure 11.” United States v. Sandoval, 477 F.3d 1204, 1207


      1
       Mr. Hall acknowledges that Rule 12 of the Federal Rules of Criminal
Procedure “does allow for the review of an untimely suppression argument upon a
showing of good cause” but says “it is difficult to imagine” how he could make such
a showing. Aplt. Reply Br. at 3 n.1.
                                            4
(10th Cir. 2007). “[E]ither the express language of the plea agreement, if sufficiently

clear, detailed, and comprehensive, or the probing inquiry of a proper Rule 11

colloquy could be enough to conclude the waiver was knowing and voluntary. But

the synergistic effect of both will often be conclusive.” United States v. Tanner,

721 F.3d 1231, 1234 (10th Cir. 2013).

      The defendant “bears the burden to demonstrate that [the] waiver was not

knowing and voluntary.” Sandoval, 477 F.3d at 1207. Here, Mr. Hall concedes his

“plea agreement and the Rule 11 colloquy both clearly stated that [he] was waiving

his appellate rights knowingly and voluntarily.” Aplt. Reply Br. at 5. He does not

challenge the adequacy of the colloquy, and our review of the record confirms it was

thorough. The district court questioned Mr. Hall and confirmed that he understood

his plea agreement as a whole and his appeal waiver in particular. At one point,

Mr. Hall even summarized his understanding as to the rights he had reserved. Under

these circumstances, Mr. Hall falls short of satisfying his burden on the

knowing-and-voluntary factor. Cf. Sandoval, 477 F.3d at 1207 (finding the defendant

did “not come close to satisfying this burden” where his plea agreement explicitly

stated that the defendant waived his appeal rights “knowingly” and the Rule 11

colloquy was thorough (internal quotation marks omitted)).

      We confine our analysis to the factors outlined in Hahn and its progeny. The

notion of a defendant receiving the benefit of the bargain in a plea agreement is not

part of this court’s jurisprudence on the second Hahn factor. Moreover, expanding

our analysis to delve into the “implicit” promises of a plea agreement, as Mr. Hall

                                           5
urges us to do, see Aplt. Reply Br. at 5, would inappropriately shift the focus from

the general application of a waiver to the specific consequences. “[I]n the context of

an appeal waiver we have rejected the notion ‘that a defendant must know with

specificity the result he forfeits before his waiver is valid.’” Sandoval, 477 F.3d at

1208 (quoting Hahn, 359 F.3d at 1327). Likewise, the Supreme Court has

emphasized that “the law ordinarily considers a waiver knowing, intelligent, and

sufficiently aware if the defendant fully understands the nature of the right and how it

would likely apply in general in the circumstances—even though the defendant may

now know the specific detailed consequences of invoking it.” United States v. Ruiz,

536 U.S. 622, 629 (2002).

                                III.   CONCLUSION

      Mr. Hall has not demonstrated that his waiver of appellate rights was not

knowing and voluntary. Accordingly, we enforce the waiver and dismiss the appeal,

without prejudice to Mr. Hall raising allegations of ineffective assistance of counsel

in a collateral proceeding.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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