                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                           March 28, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,                        No. 06-6140
           v.                                           (W .D. Oklahoma)
 CA RLOS SHAW N W ILLIAM S,                          (D.C. No. CR-05-110-L)

                Defendant-Appellant.




                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **




      In June of 2005, a federal grand jury returned a six-count indictment

against Carlos Shawn W illiams for various crimes relating to the transportation of

minors across state lines to engage in prostitution and other illicit sexual

activities. Shortly thereafter, M r. W illiams entered into an agreement whereby he




       *
        This order and judgment is not binding precedent except under the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.
      **
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G ).
The case is therefore ordered submitted without oral argument.
pleaded guilty to a violation of 18 U.S.C. § 2422(b) for using facilities and means

of interstate commerce to persuade, induce, entice, and coerce a minor to engage

in prostitution and other sexual activity, for which a person could have been

charged with a criminal offense. In exchange for the government dismissing the

six-count indictment in favor of a single charge, M r. W illiams agreed to accept a

sentence within the recommended Guidelines range and waived his right to

appeal. M r. W illiams asks this court to disregard his waiver of appellate rights,

hold that the district court improperly classified him as a career offender pursuant

to U.S.S.G. § 4B1.1(a), and vacate his sentence. W e exercise jurisdiction under

18 U.S.C. § 1291. See United States v. Hahn, 359 F.3d 1315, 1324 (2004) (en

banc) (“[T]his court has both statutory and constitutional subject matter

jurisdiction over appeals w hen a criminal defendant has w aived his appellate

rights in an enforceable plea agreement.”). For reasons set forth below, we

enforce the waiver and dismiss.

                                      I. Background

      The Federal Bureau of Investigation (FBI) arrested M r. W illiams after more

than a year of investigation into a prostitution ring that spanned Oklahoma,

Colorado, and Texas. The investigation revealed that M r. W illiams and several

others were recruiting minors as young as thirteen to work as prostitutes. The

FBI also reported that M r. W illiams, who worked as a pimp, raped and beat at

least two of his prostitutes, including a seventeen year old girl, K.W .    The

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investigation suggests that M r. W illiams manipulated the prostitutes in his charge

through threats of brutality against them and their children.

      The Presentence Report (PSR) set M r. W illiams offense level at 26. M r.

W illiams’s extensive criminal history, which included no fewer than seven

convictions for possessing, trafficking, and distributing controlled substances as

well as numerous other run-ins with the law placed him in criminal history

Category VI, the category reserved for the w orst repeat offenders. The PSR also

recommended that the court apply a “career offender” enhancement that would

raise the offense level to 29. The career offender enhancement applies where the

offense at issue is a crime of violence and “the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance

offense.” U .S.S.G. § 4B1.1(a). W hen M r. Williams pleaded guilty, the only

undetermined issue was whether his violation of 18 U.S.C. § 2422(b), solicitation

and coercion of a minor to engage in commercial prostitution, constituted a

“crime of violence” w hich w ould trigger the career offender provision in M r.

W illiams’s case.

      At the plea hearing, the district court made clear that it had not yet decided

whether M r. W illiams’s offense would make him a career offender, but that both

M r. W illiams and the government would be bound by the terms of the plea

bargain regardless of the decision. Both M r. W illiams and his lawyer said that

they understood. The district court ultimately found that M r. W illiams’s offense

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was a crime of violence and applied the career offender enhancement, and raised

M r. W illiams offense level to 29. An adjusted offense level of 29 combined with

a criminal history Category VI yielded a guideline range of 120 to 150 months.

The district court sentenced M r. W illiams to 135 months.

                                               II.

        This court employs a three-pronged analysis to determine whether to

enforce a waiver of appeal. Hahn, 359 F.3d at 1325. W e examine “(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.

                       A. Scope of the Waiver of the Appellate Rights

        M r. W illiams claims that his appeal is beyond the scope of the bargain

because “the agreement did not contain a specific situation where . . . the

guideline range w as calculated in violation of the Constitution.” A plt’s Rep. Br.

at 1.   Unfortunately, M r. W illiams fails to illuminate what aspect of the sentence

rendered it “in violation of the Constitution” and released him from his

contractual obligations. Id. Since his opening brief focused entirely on the

district court’s determination that he is a career offender, presumably he believes

this decision to be “illegal” and therefore beyond the scope of the bargain.

        W e construe narrowly the scope of a waiver of appellate rights and

interpret any ambiguities against the government. Hahn, 359 F.3d at 1315. Even

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under this liberal standard, the transcript of the plea hearing leaves little doubt

that M r. W illiams waived his appellate rights. M r. W illiams agreed to a broad

waiver that barred any attempt to “[a]ppeal, collaterally challenge, or move to

modify under 18 U.S.C. § 3582(c)(2) or some other ground, his sentence as

imposed by the Court and the manner in which the sentence is determined,

provided the sentence is within or below the advisory guideline range determined

by the Court to apply to this case.” Aple’s Br. at 14.

      M oreover, the record makes clear that he agreed to accept the district

court’s determination with regard to his status as a “career offender” as part of the

plea bargain. In fact, when the issue was raised, the United States Attorney

interrupted the proceeding to ensure that M r. W illiams understood the terms of

the bargain: “I just want to make sure that M r. W illiams understands that in the

event the career offender provisions apply that’s not a grounds to withdraw the

plea at a later date at sentencing.” Plea Hrg. Tr. at 20. The court explained no

fewer than three times that M r. W illiams presented an issue that it had not

confronted and that it would not rule until sentencing. Nevertheless, the district

court made clear that both parties would be bound by the plea bargain regardless

of the way the issue was resolved. In response to the government’s and the

district court’s comments, M r. W illiams stated that he understood, and his counsel

replied, “I understand that it’s not grounds to withdraw the plea.”

      In light of the extensive discussion that took place at the plea hearing, M r.

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W illiams’ contention that the career offender determination was beyond the scope

of his plea is baffling. Yet, as evidenced by the appeal filed less than nine

months after this hearing, the lengthy in-court exchange slipped his mind. So

much so he failed to mention the plea agreement in his opening brief. This is

especially difficult to understand given that M r. W illiams was represented by the

same attorney that appears as the counsel of record on this appeal. Whether this

omission was due to absent mindedness or wishful thinking, M r. W illiams’s

agreement not to appeal the career offender ruling was clearly a basis of the

bargain, and he is still bound by the agreement.

                            B. Knowing and Voluntary Waiver

      Hahn’s second requirement is satisfied because M r. W illiams’s assent to

the bargain w as knowing and voluntary. Under Hahn, this court looks at two

factors to assess a defendant’s voluntariness. First, we “examine whether the

language of the plea agreement states that the defendant entered the plea

agreement knowingly and voluntarily.” Id. at 1324. Here, the language was clear

and there is no dispute that this condition was satisfied. Second, this court “looks

for an adequate Federal Rule 11 colloquy.” Id. at 1325. At his sentencing

hearing, the district court asked M r. W illiams and his counsel a number of

questions to ensure that no mental or emotional infirmity would compromise M r.

W illiam’s voluntariness. Plea Hrg. Tr. at 7-8. The court also engaged in an

extensive discussion regarding the rights M r. W illiams would waive by foregoing

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a trial by jury as well as his waiver of the right to appeal. Id. at 16. M oreover,

M r. W illiams was represented by counsel. The record indicates that M r.

W illiams attorney and the district court explained all aspects of the plea,

including the guidelines and the career offender enhancement, and that M r.

W illiams assented to each of the terms.

                                 C. M iscarriage of Justice

      Finally, M r. W illiams maintains that upholding the waiver would result in a

“miscarriage of justice.” Aplt’s Reply Br. at 2. “The third prong of the

enforcement analysis requires the court to determine whether enforcing the waiver

will result in a miscarriage of justice.” Hahn, 359 F.3d at 1327. A miscarriage of

justice occurs “(1) where the district court relied on an impermissible factor such

as race; (2) where ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid; (3) where the sentence

exceeds the statutory maximum; or (4) where the waiver is otherwise unlawful.”

Id. M r. W illiams asserts, without citing a single authority, that “[i]t would indeed

be a miscarriage of justice to deny [M r. W illiams] his day in court when almost 4

[sic] years of his life hangs in the balance.” Aplt’s Reply Br. at 2.

      He has stated no grounds for this court to find a miscarriage of justice, and

none exist. Perhaps, in a more nearly perfect system, M r. W illiams would have

been tried, and if convicted, sentenced by a jury of his peers on each of the six

counts he faced. Perhaps this w ould have been justice. Yet, it is difficult to

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conceive how it would be a miscarriage of justice for us to uphold a bargain

whereby the government dismissed five of the six counts against M r. W illiams in

exchange for the relatively trivial pledge that he would not appeal a sentence

within the applicable G uidelines range. The very fact that this appeal was filed is

particularly inconceivable in light of the district court’s and the government’s

painstaking efforts to ensure sure that M r. W illiams and his counsel understood

that the applicable guideline range could include the career offender

enhancement.

      Plea bargains are a necessity when offenses and offenders vastly exceed the

our justice system’s meager resources. Nevertheless, the railroad that is the

criminal justice system may run only if both defendants and the government

uphold their respective ends of plea bargains. In this case, the government was

bamboozled. The government struck a bargain with a waiver of appellate rights

so that it would avoid precisely this situation–wasting precious resources

defending an utterly frivolous appeal that it contracted to circumvent.

      The fact that M r. W illiams’s opening brief omitted any mention of the

waiver of appellate rights suggests that his counsel may have allowed a passion

for zealous advocacy to overshadow the duty of candor he owes this court. W hile

we appreciate the burdens imposed on defenders of the indigent, we should hold

court-appointed counsel to the same professional standards as w e would a well-

compensated advocate. To that end, we remind M r. W illiams’s counsel that

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attorneys may always file a motion to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967), w hen there are no non-frivolous grounds for appeal.

                                            III.

      For the foregoing reasons, we ENFORCE M r. W illiams w aiver of appellate

rights and DISM ISS his appeal.

                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge




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