United States v. Bowen
936 F.3d 1091
| 10th Cir. | 2020Background
- George W. Bowen III pleaded guilty to one count of wire fraud and executed a plea agreement that waived his right to appeal except in limited circumstances (e.g., sentence exceeds statutory maximum or exceeds the advisory Guideline range for offense level 22).
- Bowen’s co-defendant, Mauricio Beltran‑Lopez, was sentenced the day before Bowen to 30 months after receiving role and acceptance reductions and a government‑moved variant based on cooperation; the court noted being mindful of guideline disparities between white‑collar and drug offenders.
- At Bowen’s sentencing the court granted a three‑level acceptance‑of‑responsibility reduction (total offense level 22; guideline range 63–78 months) but denied the government’s motion for an additional two‑level downward departure for substantial assistance and denied a request to sentence Bowen at 51 months.
- The district court sentenced Bowen to 78 months (top of the guideline range) and made comments contrasting lenient treatment of white‑collar offenders with harsh treatment of young black and Hispanic drug offenders.
- Bowen appealed despite his waiver, arguing enforcement would be a miscarriage of justice because the district court relied on impermissible factors (race and age) in imposing sentence and in the disparity with Beltran‑Lopez’s sentence.
- The government moved to enforce the appeal waiver under United States v. Hahn; the Tenth Circuit reviewed whether enforcing the waiver would be a miscarriage of justice under plain‑error review and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bowen's appellate waiver should be enforced or excused because the district court relied on impermissible factors (race/age) in sentencing | Bowen: court’s remark about “young black and Hispanic men” vs “people like Mr. Bowen and Mr. Madoff” shows race/age influenced sentence and produced the disparity with co‑defendant | Government: waiver covers this appeal; Bowen knowingly waived; court provided legitimate, neutral reasons for the sentencing disparity and denial of departure | Waiver enforced; no miscarriage of justice shown because Bowen failed to prove plain error based on race/age reliance |
| Whether the district court plainly erred in denying Bowen’s requested substantial‑assistance departure | Bowen: district court’s stated reasons were pretextual and masked impermissible bias | Government: district court explained denial (skepticism about usefulness of Bowen’s information, lack of convictions from his cooperation, view that fraud cases are documented and victims might prefer trial) | No plain error: record shows non‑racial, case‑specific reasons for sentencing decisions; speculative inference insufficient |
Key Cases Cited
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (per curiam) (framework for enforcing appellate waivers and exceptions, including impermissible‑factor exception)
- United States v. Johnson, 756 F.3d 1218 (10th Cir. 2014) (plain‑error standard and requirements for showing reversible plain error)