                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    March 4, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v.                                                  No. 09-5079
                                              (D.C. No. 4:08-CR-00181-JHP-1)
    JOSEPH LYNN THORNBURGH,                             (N.D. Okla.)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, EBEL, and GORSUCH, Circuit Judges.



         On December 15, 2008, defendant Joseph Lynn Thornburgh pleaded guilty

to one count of being a felon in possession of firearms and ammunition and to

criminal forfeiture of the firearms and ammunition. Thornburgh and the United

States executed a written plea agreement, which provides, among other things,

that Thornburgh “knowingly and voluntarily” “waives the right to directly appeal



*
      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);
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 This order and judgment is not binding precedent, except under the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.
the conviction and sentence pursuant to 28 U.S.C. §1291 and/or 18 U.S.C.

§3742(a),” but “reserves the right to appeal from a sentence which exceeds the

statutory maximum.” Plea Agrmt. at 3, ¶ 3(a), (b). In the plea agreement,

Thornburgh acknowledges that his guilty plea “authorizes the Court to impose any

sentence up to and including the maximum sentence set forth in the United States

Code,” id. at 5, ¶ 6, which, he further acknowledges, is “ten (10) years of

imprisonment and a fine of not more than $250,000,” id. at 13, ¶ 14(a).

      The plea agreement also provides that Thornburgh understands that the

court may impose a fine, and he agrees

      to submit to interviews by the United States Attorney’s Financial
      Litigation Unit regarding the defendant’s financial status, and to
      complete and submit a financial statement, under oath, not later than
      two weeks after the date of this plea agreement. The defendant
      understands that, by law, interest accrues on any remaining balance
      of the debt.

Id. at 5-6, ¶ 7. And the agreement additionally provides that “[i]f the sentencing

Court should impose any sentence up to the maximum established by statute, the

defendant cannot, for that reason alone, withdraw defendant’s guilty plea, but will

remain bound to fulfill all of defendant’s obligations under this agreement.” Id.

at 15, ¶ 14(c).

      At sentencing, the court calculated the advisory guideline range to be zero

to six months’ imprisonment, a term of probation not to exceed three years, a term

of supervisory release following incarceration between two and three years, a fine


                                         -2-
of $250-$5,000, and a special assessment of $100. The court imposed a sentence

of three years’ probation, with no term of imprisonment, but it also imposed the

statutory maximum fine of $250,000. The court found that Thornburgh had

refused to comply with numerous requests from his counsel and the probation

office to provide an affidavit fully describing his financial resources as required

under 18 U.S.C. § 3664(d)(3). It further found that the record clearly disclosed

that Thornburgh “demonstrated great cunning and business acumen” and had “the

ability to earn significant income.” Tr. Sent’g Hrg. of May 18, 2009, at 145.

             Clearly, the defendant has undisclosed financial resources and
      the ability to earn income. Because the defendant has a history of
      amassing financial assets and has failed to cooperate by providing
      financial information, a substantial fine set at the statutory maximum
      is appropriate. A fine outside of the guideline range will promote
      respect for the law, provide just punishment, and provide adequate
      deterrence to criminal conduct.

            The burden is upon the defendant to show that any financial
      penalty exceeds his earning ability. The defendant has failed to
      demonstrate such; therefore, the court orders a fine in the amount of
      $250,000.

Id. at 146 (citations omitted).

      Despite his appeal waiver, Thornburgh has appealed, indicating his intent

to raise two issues on appeal: 1) the fine imposed violates the Eighth

Amendment; and 2) the district court failed to give notice of its intention to go

beyond the sentencing guidelines and impose a greater sentence than

recommended. Docketing Statement at 4. Seeking to enforce Thornburgh’s


                                         -3-
waiver of his appellate rights, the United States has filed a motion to dismiss the

appeal in accordance with United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(en banc) (per curiam).

      In determining whether to dismiss an appeal based on a waiver of appellate

rights, 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 his appellate rights; and (3) whether enforcing the waiver would result in

a miscarriage of justice.” Id. at 1325. Thornburgh, who is represented on appeal

by retained counsel, has not filed a response to the government’s motion to

dismiss, despite being directed to do so and given numerous extensions of time.

Nonetheless, we have carefully reviewed the plea agreement, the transcripts of the

change of plea and sentencing hearing, and Thornburgh’s intervening motion to

withdraw his plea, with the pertinent Hahn factors in mind. For the reasons stated

below, we grant the government’s motion and dismiss the appeal.

      We first consider whether the appeal falls within the scope of the waiver of

appellate rights and conclude that it does. Thornburgh waived his right to appeal

both his conviction and his sentence and reserved only the right to appeal a

sentence that exceeds the statutory maximum; he did not reserve the right to

appeal either an illegal sentence or one that departed upward from the guidelines

range. In United States v. Green, 405 F.3d 1180, 1194 (10th Cir. 2005), we held

that the term “statutory maximum” in Hahn “refers to the upper limit of

                                         -4-
punishment that Congress has legislatively specified for the violation of a given

statute.” Neither of the issues Thornburgh wishes to raise on appeal relate to

whether his sentence exceeded the statutory maximum, so neither is within his

reservation of appellate rights. Rather, Thornburgh’s contentions that the amount

of the fine was excessive under the Eighth Amendment and that the district court

erred in not giving him prior notice of its intent to depart upward are both within

the scope of his waiver of appellate rights.

      We next consider whether Thornburgh knowingly and voluntarily waived

his appellate rights, looking primarily to the language of the plea agreement and

the adequacy of the Rule 11 colloquy. See Hahn, 359 F.3d at 1325. Thornburgh

bears the burden of showing that his plea was not knowing and voluntary. Id. at

1329. Paragraph 3 of the plea agreement details the waiver of appellate and

post-conviction rights. 1 It begins with a statement that Thornburgh is “knowingly

and voluntarily” waiving his right to appeal, and it concludes with the following

statement: “The defendant expressly acknowledges that counsel has explained his

appellate and post-conviction rights; that defendant understands his rights; and

that defendant knowingly and voluntarily waives those rights as set forth above.”

Plea Agrmt. at 3, 4, ¶ 3. Thornburgh separately signed the plea agreement at the

conclusion of this acknowledgment and also initialed each page of the agreement

1
       In addition to waiving his right to directly appeal his conviction and
sentence, Thornburgh waived various post-conviction rights, which are not at
issue here.

                                          -5-
and signed it at the end. Thus, the language of the plea agreement demonstrates

that the waiver of appellate rights was knowing and voluntary.

       The district court conducted a thorough Rule 11 plea colloquy at the change

of plea hearing on December 15. Thornburgh acknowledged during the colloquy

that he had sufficient time to confer with his appointed counsel and that he was

satisfied with her representation. When pressed on whether he was completely

satisfied with his counsel, Thornburgh was less certain, so the court inquired

further. Thornburgh explained that he was not advised that he could have waived

his right to speedy trial and then asked for a continuance so that his conviction on

the firearms offense would not occur before his upcoming trial in a separate

proceeding on money laundering and fraud charges. Thornburgh was concerned

about having evidence of a recent felony conviction, i.e., the firearms offense,

introduced at that trial.

       Thornburgh’s counsel commented that both she and the court had

previously advised Thornburgh that even if he waived his speedy trial rights, it

did not guarantee him a continuance, and that the case law did not support

granting a continuance for the purpose of delaying his conviction until after the

trial in the other criminal proceeding was concluded. Following counsel’s

comments, the court asked Thornburgh if he was willing to go forward with his

guilty plea, to which he replied, “Absolutely.” Tr. Plea Hrg. at 10.




                                         -6-
      Later in the colloquy the court asked Thornburgh if there was anything he

did not understand about the elements of the crime with which he was charged.

Thornburgh said that he had thought that if his prior felonies were more than ten

years old, then he could possess firearms, though he had since learned that was

not true. He also said that during an unrelated search of his house in 2003, the

agent conducting the search found the guns, but then left them in Thornburgh’s

possession despite his knowledge of Thornburgh’s prior felonies. Following this

statement, the court confirmed that Thornburgh did understand the essential

elements of the crime with which he was charged. And the government then

recited the evidence against Thornburgh, including the fact that Thornburgh had

acquired several of the firearms though strawman purchases, which suggested that

he knew it was unlawful for him to possess them.

      Thornburgh told the court that he “[a]bsolutely” understood all the

provisions of the plea agreement and had no questions about the agreement.

Id. at 22. The court specifically asked Thornburgh if he understood that he was

waiving his right to appeal and to collaterally attack his sentence, and Thornburgh

said he did. The court also confirmed Thornburgh’s understanding that the court

could impose any sentence up to the statutory maximum, which it said was no

more than ten years in prison and/or a fine of up to $250,000. Thornburgh

acknowledged that he “freely and voluntarily agree[d] to the written plea

agreement,” that his “plea of guilty and the waiver of [his] rights was voluntary

                                         -7-
and completely of [his] own free choice,” and that no one had threatened him or

made any promises to him, other than those stated in the plea agreement, in an

effort to coerce him to plead guilty. Id. at 27-28. Thornburgh then admitted each

element of the charged offense and reiterated his agreement to forfeit the firearms

and ammunition.

      The district court accepted Thornburgh’s guilty plea, finding that he was

competent to make the plea and that it was entered “freely and voluntarily with a

full understanding of its consequences.” Id. at 32. The plea colloquy

demonstrates that Thornburgh knowingly and voluntarily entered his guilty plea

and waived his appellate rights.

      Several months after entering his guilty plea, Thornburgh discharged his

appointed counsel and retained counsel to represent him. During the course of the

subsequent sentencing proceedings, at which the government contended that

Thornburgh should receive a sentence of imprisonment and Thornburgh argued

that he should not, Thornburgh told the court that the only reason he had pleaded

guilty was because the attorney who was first appointed to represent him had told

him that the advisory guidelines range for his firearms offense was zero to six

months’ probation. Concerned with Thornburgh’s statements, the court postponed

the sentencing hearing for a week. On the day the hearing was to recommence,

Thornburgh filed a motion to withdraw his guilty plea. He contended that the

plea was not knowing and voluntary and he believed he would receive probation

                                         -8-
if he entered the plea. He also stated that he had been denied the opportunity to

contest an invalid warrant.

      That afternoon, the court held an evidentiary hearing on Thornburgh’s

motion to withdraw his plea, at which it heard testimony from Thornburgh’s first

appointed counsel, who allegedly made the representation about probation,

Thornburgh’s second appointed counsel, who represented him during the plea

negotiations, and Thornburgh himself. The court also reviewed the written plea

agreement and transcripts of the change-of-plea hearing and Thornburgh’s

statement at the earlier sentencing hearing, and it heard extensive arguments from

the government and defense counsel. The court considered the evidence before it

in light of the factors set forth by this court in United States v. Gordon, 4 F.3d

1567, 1572 (10th Cir. 1993), and concluded that Thornburgh had not met his

burden of showing a fair and just reason to withdraw his plea. The court

therefore denied Thornburgh’s motion to withdraw his guilty plea and proceeded

with sentencing. Thornburgh’s docketing statement does not indicate any intent

to challenge on appeal the district court’s denial of his motion to withdraw his

guilty plea.

      Both the plea agreement itself and the plea colloquy demonstrate that

Thornburgh’s plea was knowing and voluntary. Neither Thornburgh’s

subsequent statements to the court nor the testimony of his previous attorneys

about their discussions with him cast doubt on that fact. Accordingly, we

                                          -9-
conclude that Thornburgh’s waiver of his appeal rights was knowing and

voluntary. See Hahn, 359 F.3d at 1325.

      Even if the waiver was knowing and voluntary and the issues Thornburgh

wishes to appeal are within the scope of that waiver, however, we will not enforce

the waiver if it would result in a miscarriage of justice.

             To prove that enforcement of an appellate waiver would result
      in a miscarriage of justice, a defendant must establish at least one of
      four circumstances: (1) reliance by the court on an impermissible
      factor such as race in imposition of the sentence; (2) ineffective
      assistance of counsel in connection with the negotiation of the
      waiver; (3) the sentence exceeds the statutory maximum; or (4) the
      waiver is otherwise unlawful and seriously affects the fairness,
      integrity, or public reputation of judicial proceedings.

United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). “[This] list is

exclusive: enforcement of an appellate waiver does not result in a miscarriage of

justice unless enforcement would result in one of the four situations enumerated

above.” United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir. 2008) (internal

quotation marks omitted). The record before us does not establish any of these

circumstances.

      First, there is no evidence that the district court relied on a constitutionally

impermissible factor. Second, even if Thornburgh were to contend, as he did in

the district court, that his prior counsel failed to assert a potentially valid

challenge to the search warrant, counsel’s alleged ineffectiveness does not relate

to the negotiation of the waiver. Moreover, “a defendant must generally raise


                                           -10-
claims of ineffective assistance of counsel in a collateral proceeding, not on direct

review. This rule applies even where a defendant seeks to invalidate an appellate

waiver based on ineffective assistance of counsel.” Porter, 405 F.3d at 1144

(citation omitted). Third, the sentence imposed does not exceed the statutory

maximum set by Congress for the offense of conviction, which was no more than

ten years of imprisonment and a fine of not more than $250,000.

      Finally, the waiver is not otherwise unlawful and does not seriously affect

the fairness, integrity, or public reputation of judicial proceedings. In Shockey,

we considered the defendant’s claim that it would be a miscarriage of justice to

enforce his appeal waiver because the sentence the district court imposed was so

ambiguous as to be unlawful. The defendant based his claim on our decision in

United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997), which included

in its definition of an “illegal sentence” a sentence that is “ambiguous with

respect to the time and manner in which it is to be served,” or that is “internally

contradictory.” (Internal quotation marks omitted). We concluded in Shockey

that our precedent foreclosed the defendant’s claim, however, because “the fourth

Hahn exception looks to whether the waiver is otherwise unlawful, not to whether

another aspect of the proceeding may have involved legal error.” Shockey,

538 F.3d at 1357 (internal quotation marks omitted). “As inscrutable as

Shockey’s sentence is, enforcement of his plea agreement’s waiver would not

render the waiver itself unlawful. . . . Nothing in Dougherty casts Shockey’s

                                         -11-
waiver as unlawful.” Id. at 1357-58 (citations and internal quotation marks

omitted). Cf. United States v. Groves, 369 F.3d 1178, 1182 (10th Cir. 2004)

(concluding appeal waiver did not bar defendant’s claim that his sentence was

unconstitutional “[b]ecause the defendant reserved the right to appeal an ‘illegal

sentence,’ and because an unconstitutional sentence is ‘illegal’”). Likewise,

nothing in the record suggests that Thornburgh’s waiver of his appellate rights

was unlawful.

      Accordingly, we GRANT the government’s Motion to Enforce Plea

Agreement and DISMISS the appeal.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




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