United States v. Titties, 713 F. App'x 783

Daminion T. Titties pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); plea agreement explained statutory maximum is 10 years, or 15 years to life if ACCA applies.
District court initially applied the Armed Career Criminal Act (ACCA) enhancement and sentenced Titties to 188 months.
This court vacated that sentence because one of three prior convictions did not qualify under ACCA, and remanded for resentencing, leading to a 120-month sentence (the statutory maximum absent ACCA).
Titties had signed a plea agreement that contained a broad appellate-waiver provision, preserving one narrow exception for appeals of substantive reasonableness of an above-guidelines sentence determined by the court.
The government moved to enforce the appellate waiver; Titties argued the waiver was not knowing/voluntary and that the appeal falls outside the waiver’s scope.
The panel considered whether Hahn’s three-factor test for enforcing waivers was satisfied and whether enforcing the waiver would be a miscarriage of justice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this appeal falls within the scope of the plea agreement waiver	Titties: appeal of his 120-month sentence is permitted because it is effectively an upward departure from the proper guideline range he advocated (70–87 months)	Government: waiver covers appeals of the sentence as imposed; exception applies only to appeals from an above-guideline sentence as determined by the court	Held: Appeal is within waiver scope; exception doesn’t apply because the court-determined guideline range was 121–151 months and Titties received 120 months (below the range).
Whether the appellate waiver was knowing and voluntary	Titties: later confusion at resentencing shows he did not fully understand waiver; district court should have explained waiver more at plea hearing	Government: plea agreement and Rule 11 colloquy show waiver was knowing and voluntary	Held: Waiver was knowing and voluntary; Titties failed to meet burden to show otherwise.
Whether enforcing the waiver would result in a miscarriage of justice	Titties: did not assert a miscarriage-of-justice argument in response	Government: no miscarriage of justice exists	Held: No miscarriage of justice; enforcement appropriate.
Whether the appeal should be dismissed under Hahn test	Titties: challenges first two Hahn factors (scope and knowing/voluntary)	Government: all three Hahn factors satisfied	Held: All Hahn conditions met; government’s motion granted and appeal dismissed.

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam) (framework for enforcing appellate waivers)
United States v. Cudjoe, 634 F.3d 1163 (10th Cir. 2011) (evaluating whether an appeal waiver was knowing and voluntary)
United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (prior panel opinion vacating ACCA enhancement and remanding for resentencing)