                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 24, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 13-6244
 v.                                          (D.C. Nos. 5:13-CV-00661-M and
                                                   5:11-CR-00320-M-1)
 NOLAN MAC NEWKIRK,                                    (W.D. Okla.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


      Defendant–Appellant Nolan Mac Newkirk seeks a certificate of

appealability (“COA”) to appeal the district court’s dismissal of his motion to

vacate, set aside, or correct sentence under 28 U.S.C. § 2255. United States v.

Newkirk, Nos. CR-11-320-M, CIV-13-661-M, 2013 WL 4501339 (W.D. Okla.

Aug. 21, 2013). We deny his request and dismiss his appeal.



                                   Background

      On October 4, 2011, Mr. Newkirk was charged in a seven-count indictment

with attempted transfer of obscene material to a minor (18 U.S.C. § 1470),

distribution of child pornography (18 U.S.C. § 2252(a)(2)), and possession of
child pornography (18 U.S.C. § 2252A(a)(5)(B)). 1 R. 7-9. On December 19,

2011, Mr. Newkirk pleaded guilty to Counts 1 and 7—attempted transfer and

possession—and, pursuant to a negotiated plea agreement, the government

dismissed Counts 2 through 6—the distribution counts. Id. at 226-27. On June

21, 2012, the district court sentenced Mr. Newkirk to a bottom-of-the-guidelines

sentence of 120 months’ imprisonment for Count 1 and 15 months’ imprisonment

for Count 7, to be served consecutively for a total of 135 months. 2013 WL

4501339, at *1. The district court entered judgment on June 25, 2012. 1 R. 187.

Mr. Newkirk did not appeal his sentence or conviction. 2013 WL 4501339, at *1.

      On June 25, 2013, Mr. Newkirk filed a motion under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence. 1 R. 193. His motion alleged that, at

sentencing, the district court committed several errors and his retained counsel

was ineffective. Id. at 196-99. Mr. Newkirk’s § 2255 motion faced one

significant hurdle: his plea agreement expressly waived his right to “collaterally

challenge his guilty plea, sentence and restitution imposed, and any other aspect

of his conviction.” Id. at 33. The waiver excepted only the right to “appeal a

sentence above the advisory sentencing guideline range.” Id. at 34. Because the

district court sentenced Mr. Newkirk at the bottom of the guidelines range, that

exception was not triggered. See 2013 WL 4501339, at *4. The district court

held that Mr. Newkirk’s waiver was enforceable and that his collateral challenge

must therefore be dismissed. Id. at *4. Mr. Newkirk seeks to appeal that

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determination.



                                      Discussion

      In order for this court to grant a COA, Mr. Newkirk must make a

“substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), such that “reasonable jurists could debate whether (or for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further,”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

Mr. Newkirk must demonstrate that “reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Id.

      A waiver of collateral-challenge rights under § 2255 is “generally

enforceable where the waiver is expressly stated in the plea agreement and where

both the plea and the waiver were knowingly and voluntarily made.” United

States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Mr. Newkirk argues

that the collateral-challenge waiver was not knowingly made because he did not

understand the “extent of rights waived.” Aplt. Br. 2. We are not persuaded that

reasonable jurists would debate whether Mr. Newkirk knowingly waived his right

to collaterally challenge his sentence. 1

      1
        In addition to the requirement that a waiver of appellate rights be
knowing and voluntary, this court requires that the disputed right “falls within the
scope of the waiver” and that enforcing the waiver would not “result in a

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      First, Mr. Newkirk’s assertion that he did not understand his waiver to be

“broad” is belied by the record. Aplt. Br. 2. Before accepting Mr. Newkirk’s

plea, the district court engaged in the following colloquy:

             THE COURT: Let me ask you to tell me in your own
             words what—I’m sure [your counsel] has gone over this
             with you, [the prosecutor] just mentioned it—one of the
             terms concerning your waiver of your right to appeal or
             to collaterally challenge the sentence of the Court,
             except under limited circumstances. Can you tell me
             what you agreed to in that regard?

             THE DEFENDANT: In rough terms, I understand that if
             my sentence is above what the Sentencing Guidelines
             are, then I may appeal my sentencing, but under no other
             circumstances.

             THE COURT: Very well, the Court is satisfied that you
             understand what you are waiving in that regard.

3 R. 10-11 (emphasis added). Mr. Newkirk, a college graduate and master’s

degree holder, 2 R. 18, must have appreciated the breadth of the waiver when he

recited that no circumstance but the one he articulated would give rise to a right

to appeal. Elsewhere, Mr. Newkirk describes his misunderstanding as a belief

that “if the court or his counsel made a significant enough error, perhaps with



miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.
2004) (en banc). In his COA application, Mr. Newkirk does not challenge the
district court’s conclusion that his plea agreement unambiguously waived his
collateral-challenge rights, 2013 WL 4501339, at *2, and that enforcing the
waiver would not result in a miscarriage of justice, id. at *4. Nor does he allege
that he entered into the plea agreement involuntarily. We thus confine our review
to whether Mr. Newkirk “knowingly” relinquished his right to bring a collateral
challenge such as this one.

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regard to any binding case law or a substantive fact, that the court would allow

the error to be corrected.” 1 R. 240; see also Aplt. Br. att. 4.a 1. This alleged

misunderstanding—that he only waived his right to appeal insignificant errors—is

foreclosed by his stated understanding that he was waiving appeal for any and

every “other circumstance” beyond an above-the-guidelines sentence.

      Second, Mr. Newkirk argues that his failure to understand the extent of his

waiver can be inferred from his misunderstanding of other parts of his plea

agreement. Aplt. Br. att. 4.a 1. Specifically, he argues that he did not understand

“even general concepts such as the maximum term of imprisonment.” Id. Again,

the record shows that Mr. Newkirk was not laboring under misunderstandings at

the time he asked the court to accept his plea. Apparently, after initially

reviewing the PSR, Mr. Newkirk mistakenly believed that he faced a maximum

sentence of only 120 months; in reality, the maximum guidelines range was 135

to 168 months. 3 R. 27-28. In a colloquy with Mr. Newkirk, the district court

related that:

                [“]Defense counsel accepts responsibility for the
                miscommunication, or misunderstanding . . . . This
                matter was reviewed again with Mr. Newkirk in a
                lengthy meeting on April 25th, to determine whether his
                guilty plea was knowing and voluntary, and whether he
                wished to withdraw his plea, and request a trial, or
                whether he wished to seek an independent legal opinion
                from other counsel. After a thorough discussion with
                the undersigned counsel, Mr. Newkirk advised that he
                does not wish to withdraw his guilty plea, rather he
                wants to stand on his guilty plea, understanding that,

                                          -5-
             under the guideline sentence, it could be up to a range of
             135 to 168 months . . . .[”]

             [THE COURT:] That is the paragraph, Mr. Newkirk,
             that [your counsel] asked me to just have a brief
             colloquy with you, and to make sure that, from this, I
             understand that you do not want to withdraw your guilty
             plea, but to proceed on with these proceedings, in spite
             of the misunderstanding about what the punishment is,
             the range of punishment is, in this case; is that correct?

             THE DEFENDANT: That’s correct, Your Honor.

             THE COURT: Any question about it at all in your mind?

             THE DEFENDANT: No.

3 R. 28-29 (emphasis added). The district court then sentenced Mr. Newkirk to

135 months as it indicated it might do. Id. at 70. Given the district court’s

explanation of the correct range of punishment, recitation that Mr. Newkirk had a

“lengthy meeting” and “thorough discussion” about this with his counsel, and Mr.

Newkirk’s voiced understanding, his claim that “the plea agreement was not well

understood and was not entered into with accurate knowledge of even general

concepts such as the maximum term of imprisonment” is without support. Aplt.

Br. att. 4.a 1. Given that the government agreed to dismiss the five distribution

Counts—with maximum penalties of 20 years and mandatory minimums, 1 R.

227—Mr. Newkirk’s decision to plead and waive his appellate and collateral-

challenge rights seems all the more knowing.

      In sum, Mr. Newkirk has failed to make a substantial showing that the


                                        -6-
district court erred by holding that his collateral-challenge waiver was

enforceable and barred his § 2255 motion. Throughout his post-conviction

pleadings, Mr. Newkirk raises challenges to his sentence, such as the

ineffectiveness of his counsel for failing to raise certain arguments and errors by

the district court for failing to rule on certain objections. See Aplt. Br. 2; id. att.

4.b 1–2; 1 R. 197-99. However, these arguments do not go to the validity of his

collateral-challenge waiver but constitute challenges to the sentence itself. Aplt.

Br. 4 (“I am asking the court to respond to counsel’s sentencing brief . . . and

reduce the sentence in accordance with the arguments contained in that brief. I

do not wish to withdraw my plea of guilty.”). As just demonstrated, Mr. Newkirk

knowingly and voluntarily waived his right to collaterally challenge his sentence

for any reason beyond an above-the-guidelines sentence. The district court

correctly enforced this waiver, and these sentence-challenging arguments are

accordingly barred.

      We DENY a COA, DENY Mr. Newkirk IFP status, and DISMISS this

appeal.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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