UNITED STATES of America, Plaintiff-Appellee, v. Robert Clifton TANNER, Defendant-Appellant.
No. 13-4022.
United States Court of Appeals, Tenth Circuit.
July 12, 2013.
721 F.3d 1231
III.
For the foregoing reasons, Defendant‘s conviction is AFFIRMED.
Submitted on the motion to enforce and response:* Diana Hagen, Assistant United States Attorney, David B. Barlow, United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.
Scott Keith Wilson, Assistant Federal Public Defender, and Kathryn N. Nester, Federal Public Defender, Salt Lake City, UT, for Defendant-Appellant.
Before TYMKOVICH, O‘BRIEN, and GORSUCH, Circuit Judges.
Robert Clifton Tanner was charged with four counts of mail fraud. He entered into a plea agreement with the United States pursuant to
“This court will hold a defendant to the terms of a lawful plea agreement.” United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.1998). And we will enforce an appeal waiver in a plea agreement as long as three elements are met: (1) “the disputed appeal falls within the scope of the waiver of appellate rights“; (2) “the defendant knowingly and voluntarily waived his appellate rights“; and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. In his response to the government‘s motion, Tanner concedes his appeal is within the scope of the waiver. He argues, however, that the record does not affirmatively show his waiver to be knowing and voluntary and enforcing it would be a miscarriage of justice.
“We only enforce waivers that defendants enter into knowingly and voluntarily.” Id. at 1328-29. “Nevertheless, it is the defendant who bears the burden of demonstrating [his] waiver was not knowing and voluntary.” United States v. White, 584 F.3d 935, 948 (10th Cir.2009) (alteration in original) (internal quotation marks omitted); United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir.2003) (defendant “has the burden to present evidence from the record establishing that he did not understand the waiver“). In determining whether a defendant waived his appellate rights knowingly and voluntarily, “we especially look to two factors.” Hahn, 359 F.3d at 1325. The first factor is “whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily” and the second is whether there was “an adequate
Seizing on that language, Tanner claims we cannot conclude his appeal waiver was knowing and voluntary unless there was a specific discussion about it during the Rule 11 colloquy. That is so, he says, because
Determining whether a defendant knowingly and voluntarily waived his rights is a question of law, see, e.g., United States v. Vidal, 561 F.3d 1113, 1118 (10th Cir.2009) (guilty plea); United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 n. 4 (10th Cir.2008) (plea agreement), but it is one that must be based on “the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused,” North Carolina v. Butler, 441 U.S. 369, 375, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (internal quotation marks omitted). A properly conducted plea colloquy, particularly one containing express findings, will, in most cases, be conclusive on the waiver issue, in spite of a defendant‘s post hoc assertions to the contrary. See, e.g., Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is
In considering the totality of the circumstances, either the express language of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be enough to conclude the waiver was knowing and voluntary. But the synergistic effect of both will often be conclusive. Here, the plea agreement and the abbreviated Rule 11 colloquy, taken together, demonstrate Tanner‘s waiver to have been knowingly and voluntarily made.
Tanner was forty-five years old when he entered into the plea agreement and held an associate‘s degree. The agreement discussed the waiver of appellate rights in two different paragraphs. Paragraph 8 provided:
I know that
18 U.S.C. § 3742(c)(1) sets forth circumstances under which I may appeal my sentence. However, fully understanding my right to appeal my sentence, and in consideration of concessions and/or commitments made by the United States in this plea agreement, I knowingly, voluntarily and expressly waive my right to appeal as set forth in paragraph 12 below.
Mot. to Enforce, Attach. A at 3, ¶ 8. And paragraph 12, in turn, provided in pertinent part:
Fully understanding my limited right to appeal my sentence, as referenced above in paragraph 8, and in consideration of the concessions and/or commitments made by the United States in this plea agreement, I knowingly, voluntarily, and expressly waive my right to appeal any sentence imposed upon me [except] the right to appeal as set forth in
18 U.S.C. § 3742(c)(1) , which states that I may not file a notice of appeal unless the sentence imposed is greater than the sentence set forth in this agreement.
Id. at 5, ¶ 12(A)(6)(a).2
In addition to these statements, the plea agreement contained Tanner‘s express acknowledgements of the following: he was not pleading guilty due to any “threats, promises or representations” made to him by anyone; he had discussed the plea with his attorney as much as he wished and had no further questions; he was satisfied with his attorney; his “decision to enter this plea was made after full and careful thought; with the advice of counsel; and with a full understanding of [his] rights ... and the consequences of the plea“; he had “no mental reservations concerning the plea“; and he did “not wish to make changes to this agreement because [he]
At the change of plea hearing, the trial judge questioned Tanner about his understanding of the plea agreement, the factual basis for his plea, and his willingness to enter into the plea agreement. The judge did not specifically mention the appeal waiver contained in paragraph 12, but did question Tanner about the provisions of paragraph 12 in general. In response, Tanner acknowledged having read each of the provisions in paragraph 12 with his attorney. He said he understood them and agreed to all of their terms. Mot. to Enforce, Attach. B, at 16. He also verbally verified the acknowledgments he made in the written plea agreement, described above, concerning his consultation with his attorney about the plea agreement, his willingness to enter into it, and his agreement with all of its terms. Id. at 18-19. Further, he evidenced his awareness of the terms of the plea agreement and his understanding of the proceedings when he corrected the trial judge‘s recitation of the factual basis for his plea contained in the agreement. See id. at 12-15. Based on the evidence before him, the judge found Tanner‘s plea to be “freely and voluntarily [made] with full knowledge of his legal rights.” Id. at 21.
Tanner would have us ignore all this evidence, simply because the judge failed to specifically discuss the appeal waiver with him. Tellingly, he does not contend the waiver was actually unknowing or involuntary. His argument is entirely technical: without a specific Rule 11 colloquy, we cannot conclude that his waiver was knowing and voluntary. But it is Tanner‘s burden to prove his waiver was not knowing and voluntary. Edgar, 348 F.3d at 872-73 (defendant “has the burden to present evidence from the record establishing that he did not understand the waiver“). He points to no evidence suggesting it was not. Indeed, the evidence is more than sufficient to show his appeal waiver to have been knowingly and voluntarily made.3
Finally, Tanner argues that even if we conclude his appeal waiver was knowing and voluntary, we should not enforce it because doing so would result in a miscarriage of justice. See Hahn, 359 F.3d at 1327 (“The third prong of our enforcement analysis requires the court to determine whether enforcing the waiver will result in a miscarriage of justice.“). According to him, enforcing the appeal waiver when the trial judge failed to question him about it during the Rule 11 colloquy would seriously affect the fairness of the proceedings. See id. (this court will not enforce a waiver that is “otherwise unlawful” due to an error that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings” (internal quotation marks omitted)).
District court judges should, of course, “perform vigilantly their duties under Rule 11 ... [because] [s]trict compliance with the requirements of Rule 11 conserves judicial resources and offers the best mechanism to ensure that defendants understand their situation ... [and] this is especially true with appellate waivers.” Edgar, 348 F.3d at 871 n. 3.4 But we can contemplate no reason why a failure to comply with Rule 11 would be more strict-
Tanner‘s waiver of appeal rights is enforceable: it was knowingly and voluntarily made, this appeal falls within its scope, and no miscarriage of justice could flow from enforcement. The government‘s motion to enforce the waiver is granted and this appeal is DISMISSED.
PER CURIAM