United States v. Cudjoe
2011 U.S. App. LEXIS 5024
| 10th Cir. | 2011Background
- Cudjoe pleaded guilty to conspiracy to possess with intent to distribute and to distribute controlled substances (Count 1) and to carrying a firearm during a drug trafficking crime (Count 74) under a plea agreement.
- Initial sentencing imposed 360 months for Count 1 and 60 months for Count 74, totaling 420 months.
- On appeal, we held the government breached its obligation by recommending more than 360 months and remanded for resentencing.
- On remand, the district court sentenced 300 months for Count 1 and 60 months for Count 74, totaling 360 months.
- Cudjoe filed an Anders brief; the government moved to enforce the appeal waiver under Hahn; the sole issue became whether the waiver should be enforced.
- The court ultimately dismissed the appeal, found the waiver enforceable except for challenging the five-year supervised-release term, and directed clerical correction of Count 74’s §924(c) conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal waiver should be enforced. | Cudjoe argues issues fall within the waiver; none should be exempt. | Government contends waiver covers the sentenced issues within the Guidelines range. | Waiver enforceable; appeal dismissed. |
| Whether the waiver was knowing and voluntary. | Cudjoe contends waiver not knowingly/voluntarily agreed. | Waiver and Rule 11 colloquy show knowing and voluntary waiver. | Waiver knowing and voluntary; Hahn criteria satisfied. |
| Whether enforcing the waiver would cause a miscarriage of justice. | No per se miscarriage; none identified. | Enforcement would not cause miscarriage; no impermissible factors found. | No miscarriage of justice; waiver enforced. |
| Whether the five-year supervised-release term on Count 74 was illegal or exceeded the statutory maximum. | Five-year term exceeded the maximum for §924(c)(1); thus illegal and not waivable. | Rule that current law allows five-year supervised release for §924(c)(1)(A)(i); not illegal. | Five-year term did not exceed statutory maximum; not illegal; within waiver scope. |
Key Cases Cited
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (three-part test for enforcing appellate waivers after entry of waiver)
- United States v. Corey, 999 F.2d 493 (10th Cir. 1993) (supervised release cap for §924(c) offenses; impact on waiver scope)
- United States v. Hudson, 483 F.3d 707 (10th Cir. 2007) (waiver may not preclude appellate review of illegal restitution orders)
- United States v. Gordon, 480 F.3d 1205 (10th Cir. 2007) (waiver cannot bar review of illegal sentences; similar rationale for exceptions)
- United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001) (waiver may not bar review of certain sentences or legality issues)
- United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) (illegal sentence constitutes per se reversible error when statutory maximum exceeded)