United States v. Kutz
702 F. App'x 661
| 10th Cir. | 2017Background
- In 2010 Kutz pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and possession with intent to distribute ≥50 grams of methamphetamine (21 U.S.C. § 841(a)(1)); he was sentenced in 2011.
- At the original sentencing the district court labeled Kutz a "career offender" under USSG § 4B1.1 and applied the ACCA enhancement under 18 U.S.C. § 924(e); this Court affirmed on appeal.
- After Johnson v. United States, Kutz obtained relief from his ACCA-enhanced sentence via 28 U.S.C. § 2255; the district court conducted a de novo resentencing in August 2016 without the ACCA enhancement.
- At resentencing the PSR and district court again classified Kutz as a career offender based on two Oklahoma convictions (assault with a dangerous weapon and pointing a firearm), yielding an advisory Guidelines range of 188–235 months; the court varied downward and imposed concurrent 120- and 150-month terms.
- Kutz appealed, arguing the career-offender designation (USSG §§ 4B1.1, 4B1.2) was erroneous and made his sentence procedurally unreasonable.
- The Government moved to supplement the record with the sealed plea agreement and plea-hearing transcript, arguing Kutz had waived appellate rights in his plea agreement; the Tenth Circuit granted supplementation and evaluated enforceability of the waiver.
Issues
| Issue | Plaintiff's Argument (Kutz) | Defendant's Argument (Gov’t) | Held |
|---|---|---|---|
| Whether the appeal is barred by the plea-agreement appellate waiver | Kutz contends the waiver does not cover an appeal from a resentencing after collateral relief and that career-offender question became meaningful only after Johnson | The plea agreement contains a broad, knowing and voluntary waiver covering appeals of sentence within or below the advisory Guidelines range | Waiver covers this appeal; appeal dismissed |
| Whether Kutz entered the plea and waiver knowingly and voluntarily | Kutz implied later legal developments (post‑plea) make the waiver unfair/unforeseeable | The plea agreement text and the Rule 11 colloquy show Kutz knowingly and voluntarily waived appeal rights | Waiver was knowing and voluntary |
| Whether enforcing the waiver would constitute a miscarriage of justice | Kutz argued the alleged Guidelines error affects fairness/integrity and should overcome the waiver | Government: miscarriage-of-justice exception is narrow and inapplicable absent claim the waiver itself is unlawful or other enumerated defects | Miscarriage-of-justice exception not met; enforcement appropriate |
| Whether the record may be supplemented with the plea agreement and plea transcript | Kutz argued the Government failed to designate a sufficient record to show waiver enforceability | Government sought to supplement the record; plea agreement already in the record, transcript was later filed and certified | Court granted supplementation as to transcript and treated plea agreement as part of record |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (availability of new judgment for successive postconviction challenges)
- McGaughy v. United States, 670 F.3d 1149 (10th Cir.) (de novo resentencing principles)
- United States v. West, 646 F.3d 745 (10th Cir.) (default rule of de novo resentencing)
- United States v. Tanner, 721 F.3d 1231 (10th Cir.) (enforceability of plea‑agreement waivers)
- United States v. Polly, 630 F.3d 991 (10th Cir.) (miscarriage‑of‑justice exception to enforcement of appeal waivers)
- United States v. Hahn, 359 F.3d 1315 (10th Cir.) (factors examined in waiver knowing/voluntary analysis)
- United States v. Jim, 786 F.3d 802 (10th Cir.) (burden on defendant to show plea/waiver not knowing and voluntary)
- United States v. Cudjoe, 634 F.3d 1163 (10th Cir.) (plea colloquy significance for waiver validity)