622 F. App'x 758

10th Cir.

2015

UNITED STATES of America, Plaintiff-Appellee, v. Carl Wayne DAVIS, Defendant-Appellant.

No. 14-6223.

United States Court of Appeals, Tenth Circuit.

Nov. 10, 2015.

632 F. App‘x 481

Before LUCERO, GORSUCH, and McHUGH, Circuit Judges.

Ashley Leonard Altshuler, Robert Donald Gifford, II, Esq., Debra W. Paull, Esq., Travis Dean Smith, Office of The United States Attorney Oklahoma City, OK, for Plaintiff-Appellee. Carl Wayne Davis, FTC, Oklahoma, OK, pro se. Brooke Alyson Tebow, Office of the Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

after BMG had delivered “14 boxes of documents” to C & M‘s bankruptcy counsel, Peters “had not found a retainer agreement” and was told during a C & M meeting that “no member had any knowledge of [such an agreement].” Id., Vol. I at 115-16. This information was sufficient to trigger Rule 11‘s safe-harbor period.

Peters next challenges the district court‘s finding that there was insufficient evidentiary support for the existence of an engagement agreement containing an arbitration clause. He maintains that the district court rendered that finding without considering a “secret audio recording[]” from 2001 in which Klein tells another C & M member, “There is a conflict disclaimer that we all signed.” Cross-Aplt. Opening Br. at 54, 55. But Peters does not provide any explanation why we should overlook the general rule that this court does not consider matters not raised below. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (stating that if a “theory simply wasn‘t raised before the district court, we usually hold it forfeited“). And even if he did, we fail to see how the existence of a conflict disclaimer (shown by hearsay) has any bearing on the existence of an engagement agreement containing an arbitration clause.

Peters also contests the district court‘s finding that he failed to conduct a reasonable inquiry before joining the motion to compel arbitration. He asserts that he reviewed “thousands of pages of documents and deposition transcripts,” Cross-Aplt. Opening Br. at 57, and learned of an arbitration clause in C & M‘s internal operating agreement among its members and in a letter from Gross stating that BMG “did not enter into a separate written engagement agreement” with C & M, id. at 59 (emphasis omitted). But this information does not at all suggest the existence of an engagement agreement containing an arbitration clause.

Finally, Peters argues that the district court abused its discretion by not allowing discovery or conducting a trial on the existence of the engagement agreement. We disagree. There is no requirement in Rule 11 for a sanctions trial. Indeed, the Rule 11 advisory committee explains that to minimize “the cost of satellite litigation over the imposition of sanctions, the [district] court must to the extent possible limit the scope of sanction proceedings to the record.” Fed.R.Civ.P. 11 advisory committee‘s note to 1983 amendment. And even for pre-sanctions discovery, the committee indicates it should be contemplated “only in extraordinary circumstances,” id., which Peters has not identified.⁶

III. CONCLUSION

The judgment of the district court is affirmed. BMG‘s motion to file a supplemental appendix is granted.

ORDER AND JUDGMENT*

NEIL M. GORSUCH, Circuit Judge.

After Mr. Davis pleaded guilty to federal gun charges and served his prison term he was placed on supervised released. Soon after his release, though, state officials convicted him of a new crime. For its part and in response to this news, the district court opted not to revoke Mr. Davis‘s federal supervised release but to modify its terms. Now, among other things, the court forbade Mr. Davis from accessing the Internet. But Mr. Davis quickly violated these new terms too. And at that point the district court did decide to revoke his release and sentence Mr. Davis to a new prison term—though one followed by yet another term of supervised release that, again, included conditions forbidding him from accessing the Internet.

Before us, Mr. Davis contends, among other things, that the Internet use condition the district court imposed at his latest sentencing hearing cannot be squared with United States v. Ullmann, 788 F.3d 1260 (10th Cir. 2015). Decided after the district court issued its latest sentence in this case, Ullmann holds that supervised release conditions completely prohibiting “Internet use or use of Internet-capable devices will typically constitute greater deprivations of liberty than reasonably necessary, in violation of [18 U.S.C.] § 3583(d)(2).” Id. at 1263. To be sure, Mr. Davis didn‘t raise any Ullmann-type argument before the district court so our review in this appeal can only be for plain error. And, as the government notes, it is within our discretion to deny relief under that standard where (as here) the appellant‘s submissions do not address the plain error test, its various elements, or attempt to argue how they might be met: it is not this court‘s duty, after all, to make arguments for a litigant that he has not made for himself. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). At the same time, the government candidly—and commendably—concedes that in this particular case all four elements of the plain error test are satisfied. And just as we may decline to make arguments for parties we may of course accept the well-taken arguments they do make, including their well-taken concessions of error. We do so here. The case is remanded to the district court with instructions to vacate its sentence and issue one consistent with Ullmann. All other points of appeal and motions are denied.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Notes

To the extent Peters challenges the district court‘s order denying the motion to compel arbitration, he lacks standing, as he withdrew his joinder in that motion.