United States v. Tanner, 2013 U.S. App. LEXIS 14120

Defendant Robert C. Tanner pled guilty to one count of mail fraud under a Rule 11(c)(1)(C) plea agreement that stipulated a 30‑month sentence. The district court accepted the plea and imposed the agreed 30 months.
Tanner’s written plea agreement contained an appellate‑waiver provision: he waived the right to appeal except insofar as 18 U.S.C. § 3742(c)(1) allows an appeal if the imposed sentence exceeds the agreement.
Tanner moved to appeal, claiming his sentence was illegal despite having received the agreed sentence; the government moved to enforce the appeal waiver under United States v. Hahn.
Tanner conceded his appeal fell within the waiver’s scope but argued (1) the record does not affirmatively show his waiver was knowing and voluntary because the Rule 11 colloquy did not specifically discuss the waiver, and (2) enforcing the waiver would produce a miscarriage of justice.
The written plea agreement contained multiple express acknowledgements by Tanner that he understood and voluntarily accepted the agreement, and the colloquy confirmed he had read paragraph 12 (which included the waiver) with counsel, understood it, and agreed to its terms; the judge found the plea freely and voluntarily made.
The Tenth Circuit concluded, on the totality of circumstances, that Tanner knowingly and voluntarily waived appeal rights, enforcement would not produce a miscarriage of justice, and therefore granted the government’s motion and dismissed the appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tanner’s appellate waiver was knowing and voluntary	Waiver cannot be found knowing/voluntary because Rule 11 colloquy did not specifically discuss the appeal waiver	Written plea agreement plus abbreviated colloquy are sufficient; waiver was knowing and voluntary	Waiver was knowingly and voluntarily made based on plea agreement language and the colloquy taken together
Whether Rule 11 required explicit on‑the‑record discussion of the appellate waiver to enforce it	Absent specific on‑the‑record discussion, waiver cannot be enforced	Rule 11 colloquy is an important factor but need not always include verbatim waiver recitation; totality of circumstances controls	Rule 11 error (failure to expressly discuss waiver) did not render waiver unenforceable here given the record
Whether enforcing the waiver would be a miscarriage of justice	Enforcement would be unfair because the judge failed to discuss the waiver during Rule 11 colloquy	No prejudice shown; Tanner received the bargained sentence and offers no evidence he would have pleaded differently	No miscarriage of justice; enforcement appropriate
Whether the appeal fell within the scope of the waiver	—	Appeal falls within waiver scope (conceded by Tanner)	Appeal is within waiver and thus barred

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (establishes three‑part test for enforcing appellate waivers)
United States v. Atterberry, 144 F.3d 1299 (10th Cir. 1998) (courts enforce lawful plea agreements)
United States v. White, 584 F.3d 935 (10th Cir. 2009) (defendant bears burden to show waiver was not knowing and voluntary)
United States v. Edgar, 348 F.3d 867 (10th Cir. 2003) (Rule 11 colloquy should address appellate waivers though omission is not always reversible error)
North Carolina v. Butler, 441 U.S. 369 (1979) (knowing and voluntary waiver inquiry depends on totality of circumstances)
Blackledge v. Allison, 431 U.S. 63 (1977) (court gives strong presumption of verity to solemn statements made in open court)
United States v. Vidal, 561 F.3d 1113 (10th Cir. 2009) (knowing and voluntary plea is a question of law evaluated on record)
United States v. Ibarra‑Coronel, 517 F.3d 1218 (10th Cir. 2008) (assessing plea agreement waivers)
United States v. Chavez‑Salais, 337 F.3d 1170 (10th Cir. 2003) (colloquy is one way to make waiver content known)
United States v. Dominguez‑Benitez, 542 U.S. 74 (2004) (relief for Rule 11 error requires showing of prejudice)