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

                            FOR THE TENTH CIRCUIT                              June 3, 2020
                        _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-1068
                                                   (D.C. No. 1:17-CR-00137-WJM-1)
 RODRICK HARRIS, a/k/a Trigga Loc,                             (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McKAY**, and MORITZ, Circuit Judges.
                   _________________________________

      Defendant Rodrick Harris appeals the district court’s reconsideration of its sua

sponte decision to reopen sentencing in order to lower his sentence. Because we

conclude that this appeal falls within the scope of the waiver of appellate rights



      *
         This order and judgment is not binding precedent, except under the doctrines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.
      **
          While the late Honorable Monroe G. McKay was assigned to, and participated
in the disposition of, this matter before his death on March 28, 2020, his vote was not
counted. Yovino v. Rizo, 139 S. Ct. 706, 710 (2019) (federal court may not count the vote
of a judge who dies before a decision is issued). “The practice of this court permits the
remaining two panel judges if in agreement to act as a quorum in resolving the appeal.”
United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997); see also 28 U.S.C. §
46(d) (noting circuit court may adopt procedures permitting disposition of an appeal
where remaining quorum of panel agrees on the disposition). The remaining panel
members have acted as a quorum with respect to this Order and Judgment.
contained in Defendant’s plea agreement with the government, we grant the

government’s motion to dismiss the appeal.

      Defendant was indicted on several drug-related counts. He entered into a plea

agreement with the government in which he pled guilty to one count of possessing

with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). As part of the agreement, he waived his “right to appeal any matter in

connection with this prosecution, conviction, or sentence unless it meets one of the

following criteria: (1) the sentence exceeds the maximum penalty provided in the

statute of conviction, (2) the sentence exceeds the advisory guideline range that

applies to a total offense level of 27 or (3) the government appeals the sentence

imposed.” R. vol. I at 37. In exchange, the government agreed to dismiss the

remaining counts against him.

      Defendant’s sentencing hearing was held on October 24, 2018. At the hearing,

the district court found a total offense level of 27, which resulted in an advisory

guideline range of 87–108 months. The court concluded that a below-guidelines

sentence of 66 months was warranted in light of various considerations such as

Defendant’s street-level role in the offense, his history of childhood abuse, and the

court’s policy disagreements with the sentencing guidelines for low-level drug

distributors. The court thus pronounced a 66-month sentence before concluding the

sentencing hearing.

      Two days after the hearing, the court issued a sua sponte order reopening the

sentencing hearing. The government filed a motion for reconsideration of this order,

                                            2
contending that the court lacked jurisdiction to reopen sentencing under 18 U.S.C.

§ 3582(c)(1)(B) and Fed. R. Crim. P. 35. The court ultimately agreed with the

government, reluctantly concluding that it lacked jurisdiction or authority to modify

the sentence and therefore that it must impose the sentence orally announced at the

October 24, 2018 sentencing hearing. The court explained that, shortly after the

sentencing hearing ended, the court concluded that the same considerations

motivating its downward variance to 66 months in fact warranted an even greater

downward variance to 42 months; the court opined that the below-guidelines

sentence of 66 months was still too high to be substantively reasonable in light of

these considerations. Nevertheless, the court determined that binding Tenth Circuit

interpretations of § 3582(c)(1)(B) and Rule 35 prevented it from reopening the

sentencing hearing to modify the originally imposed sentence. The court accordingly

granted the government’s motion for reconsideration and imposed judgment in

accordance with the sentence announced at the October 24 sentencing hearing.

       Defendant then filed this appeal, arguing that the district court erred in

concluding it lacked jurisdiction to reopen sentencing and that his sentence should

therefore have been reduced to 42 months in accordance with the district court’s

post-sentencing reevaluation of substantive reasonableness. The government has filed

a motion for this court to dismiss the appeal based on the plea agreement’s waiver of

appellate rights.

       We consider three factors to determine whether an appeal should be dismissed

based on an appellate waiver: “(1) whether the disputed appeal falls within the scope

                                            3
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.” United States v. Hahn, 359 F.3d 1315, 1325 (10th

Cir. 2004). In applying this test, we will find a miscarriage of justice only in four

circumstances: “(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,” meaning that it “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at

1327 (internal quotation marks omitted and brackets changed to parentheses). “The

burden rests with the defendant to demonstrate that the appeal waiver results in a

miscarriage of justice.” United States v. Anderson, 374 F.3d 955, 959 (10th Cir.

2004).

         Defendant argues that he should be allowed to proceed with this appeal for two

independent reasons: (1) his appeal does not fall within the scope of the appellate

waiver, and (2) enforcing the waiver would result in a miscarriage of justice.1 We

find neither of these arguments to be persuasive.




         1
          Defendant does not dispute that he knowingly and voluntarily waived his
appellate rights. Because a defendant seeking to avoid enforcement of an appellate
waiver bears the burden of showing that his agreement was not knowing or voluntary,
Defendant’s decision not to contest this element of the Hahn test means that we will
treat it as satisfied for purposes of this appeal. See Anderson, 374 F.3d at 958–59.
                                             4
      First, Defendant argues that this appeal does not fall within the scope of the

appellate waiver because the waiver extends only to an appeal of the sentencing

decision itself. He argues that he is not appealing his sentence but is rather appealing

the district court’s conclusion that it lacked jurisdiction to modify his sentence once

it had been orally announced at the sentencing hearing. For support, he relies on two

cases in which the appellate court concluded that a plea agreement’s waiver of the

right to appeal “any sentence” within a certain range did not apply where the district

court, acting without jurisdiction under § 3582(c)(1)(B), entered a written order

imposing a sentence higher than had been orally announced at the sentencing hearing.

United States v. Luna-Acosta, 715 F.3d 860, 861, 863–64 (10th Cir. 2013); United

States v. Vega, 241 F.3d 910, 911–12 (7th Cir. 2001).

      These authorities are readily distinguishable because Defendant’s appellate

waiver is broader in scope than the waivers in both Luna-Acosta and Vega. While the

defendants in those cases waived their rights to appeal “any sentence” falling within

a certain range, Luna-Acosta, 715 F.3d at 861; Vega, 241 F.3d at 911, Defendant

waived his right to appeal not just the sentence but “any matter in connection with

this . . . sentence,” R. vol. I at 37. Thus, we need not decide whether this appeal

would properly be characterized as an appeal of the “sentence” under a more

narrowly worded appellate waiver like those at issue in Luna-Acosta and Vega:

Defendant’s waiver extends beyond the sentence itself. Defendant seeks to challenge

the district court’s decision not to reopen the sentencing proceeding to lower his

sentence, and this is a “matter in connection with” his sentence, R. vol. I at 37, even

                                            5
if it is arguably not an appeal of the sentence itself. Defendant’s “interpretation of the

waiver clause contradicts the plain language of the plea agreement.” United States v.

Porter, 405 F.3d 1136, 1142 (10th Cir. 2005). Under this plain language, we reject

Defendant’s argument that his appeal falls outside the scope of the appellate waiver.2

      Second, Defendant argues that enforcing the appellate waiver in this case

would lead to a miscarriage of justice. He concedes that his appellate arguments do

not fit squarely within any of the four exclusive circumstances defined as

miscarriages of justice in Hahn. Nevertheless, he contends that we should find a

miscarriage of justice under the first Hahn situation, which applies “where the district

court relied on an impermissible factor such as race,” 359 F.3d at 1327, because the

district court concluded that the sentence was not substantively reasonable when it

reweighed the 18 U.S.C. § 3553 sentencing factors after the October 24 sentencing

hearing. Defendant argues that the district court’s failure at the sentencing hearing to


      2
         We note that Luna-Acosta and Vega are also distinguishable based on an
important distinction between the orders being appealed in those cases and the order
Defendant seeks to appeal in this case. In both Luna-Acosta and Vega, the challenged
post-sentencing orders were issued without jurisdiction by the district court. As the
court in Vega explained, a plea agreement cannot waive a defendant’s right to appeal
an order that is entered without jurisdiction, as “a defendant cannot confer
jurisdiction on a court by way of plea agreement.” 241 F.3d at 912. Thus, regardless
of the wording of their appellate waivers, the defendants in Luna-Acosta and Vega
could not have waived their rights to appeal the district court’s modification of their
respective sentences without jurisdiction. See id. But there is no dispute that the
district court had jurisdiction to enter the order at issue here; Defendant simply
argues that the court erred as a matter of law when it concluded in this order that it
lacked jurisdiction to modify his sentence. Thus, in contrast to Luna-Acosta and
Vega, applying the waiver in this case would not result in the plea agreement
impermissibly conferring jurisdiction upon the district court where no jurisdiction in
fact existed. We accordingly enforce the waiver on its terms.
                                            6
give adequate weight to the mitigating § 3553 factors “is far more significant than the

court improperly considering his race,” Aplt. Reply Br. at 3, and he contends that we

must therefore find that enforcing the appellate waiver in this case would work a

miscarriage of justice under the first Hahn situation.

      We have repeatedly emphasized that the four circumstances listed in Hahn are

the only circumstances in which we will find that the enforcement of a plea

agreement’s appellate waiver may result in a miscarriage of justice. See, e.g., United

States v. Shockey, 538 F.3d 1355, 1357 (10th Cir. 2008); United States v. Sandoval,

477 F.3d 1204, 1208 (10th Cir. 2007); United States v. Green, 405 F.3d 1180, 1191

(10th Cir. 2005). We are not persuaded that the alleged error in this case—failing to

give adequate weight to valid sentencing factors under § 3553—falls within the

situation described in Hahn of relying on an impermissible factor such as race.

Straining the language of this test to extend from the district court’s consideration of

impermissible factors to its substantive weighing of permissible factors would allow

the exception to swallow the rule. As we explained in United States v. Smith, 500

F.3d 1206, 1213 (10th Cir. 2007), “[t]o allow alleged errors in computing a

defendant’s sentence to render a waiver unlawful would nullify the waiver based on

the very sort of claim it was intended to waive.” Because Defendant has not shown

that this appeal falls within any of the four exclusive situations identified by Hahn as

constituting a miscarriage of justice, he has not met his burden of demonstrating that

enforcement of the waiver would result in a miscarriage of justice. See Sandoval, 477

F.3d at 1208.

                                            7
      For the foregoing reasons, we conclude that this appeal falls within the scope

of the appellate waiver and that Defendant has not shown a valid reason why the

waiver should not be enforced. We accordingly GRANT the government’s motion to

enforce the appellate waiver and DISMISS the appeal.


                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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