F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 6 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-7075
RICHARD DANIEL BENOIT, a/k/a (D.C. No. 04-CR-24-P)
Rocky Benoit, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
On February 12, 2004, the grand jury returned a three-count indictment
against Defendant charging him with knowing possession of a firearm by a
previously convicted felon in violation of 18 U.S.C. § 922(g)(1), knowing
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
possession of a firearm by an unlawful user of a controlled substance in violation
of 18 U.S.C. § 922(g)(3), and knowing and intentional possession of
methamphetamine in violation of 21 U.S.C. § 844. Defendant pled guilty to all
three counts of the indictment.
At sentencing, the Presentence Report contained the recommendation that
the district court apply § 2K2.1(a)(2) of the United States Sentencing Guidelines
Manual (“Sentencing Guidelines”) because Defendant allegedly had at least two
prior felony convictions related to crimes of violence or drugs. Rec., Vol. IV, at
4.
Defendant objected to the district court’s application of § 2K2.1(a)(2) as
violating his Sixth Amendment rights as articulated in Blakely v. Washington, ___
U.S. ___, 124 S. Ct. 2531, 2537 (2004). Rec., Vol. III, at 3-4; Vol. IV, at 12-13.
The district court overruled Defendant’s objection. Rec., Vol. III, at 9.
Defendant was subsequently sentenced to seventy-one months’ incarceration on
each firearm charge and to twelve months’ incarceration on the drug charge. The
district court ordered the sentences to run concurrently.
On appeal, Defendant again contends that the district court’s application of
§ 2K2.1(a)(2) of the Sentencing Guidelines violated his Sixth Amendment rights.
Before we address the merits of Defendant’s appeal, it is necessary to address an
argument made by the government in its brief, namely, that Defendant waived his
-2-
right to appeal his sentence. Paragraph No. 10 of the plea agreement states:
Defendant expressly waives the right to appeal defendant’s sentence
on any ground, except to challenge an upward departure from the
applicable guideline range as determined by the Court. Defendant
specifically waives any appeal rights conferred by Title 18, United
States Code, Section 3742, any post-conviction proceedings, and any
habeas corpus proceedings.
Rec., Vol. I, Tab 15, at 3. In so doing, the government argues that Defendant’s
appeal rights, at least for the issues raised in this appeal, are waived.
Although our general rule favors enforcing “plea agreements and their
concomitant waivers of appellate rights,” United States v. Hahn, 359 F.3d 1315,
1318 (10th Cir. 2004) (en banc), our analysis requires us to determine: “(1)
whether the disputed appeal falls within the scope of the waiver of appellate
rights; (2) whether the defendant knowingly and voluntarily waived his appellate
rights; and (3) whether enforcing the waiver would result in a miscarriage of
justice . . . .” 1 Id. at 1325.
The broad language of Defendant’s waiver, “Defendant expressly waives
the right to appeal defendant’s sentence on any ground, except to challenge an
1
We have outlined the following four situations when we will not enforce a
waiver because doing so would result in a miscarriage of justice: “‘[1] where the
district court relied on an impermissible factor such as race, [2] where ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4]
where the waiver is otherwise unlawful.’” Hahn, 359 F.3d at 1327 (quoting
United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001)).
-3-
upward departure from the applicable guideline range as determined by the
Court,” Rec., Vol. I, Tab 15, at 3 (emphasis added), clearly demonstrates his
intent to waive all potential issues on appeal except for the one basis specifically
exempted. Because his current argument on appeal does not relate to a challenge
to an upward departure, Defendant’s Blakely 2 argument is within the scope of his
waiver.
Defendant has not argued that his waiver was not knowingly and
voluntarily given; therefore, we need not address this issue and presume it
admitted. United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004)
(determining that appellant effectively admitted to knowingly and voluntarily
waiving his appellate rights because he did not contest the issue).
Finally, the facts of this case do not demonstrate that enforcement of the
waiver will result in a miscarriage of justice. The only plausible basis Defendant
has for demonstrating a miscarriage of justice is that his sentence exceeds the
“statutory maximum” as defined in Blakely and Booker. 3 That argument has been
2
Subsequent to the filing of the briefs in this appeal, the Supreme Court
decided United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), which
applied Blakely to the United States Sentencing Guidelines.
3
In Blakely v. Washington, the Supreme Court, in analyzing the Washington
State’s sentencing scheme, defined “statutory maximum” as “the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” 124 S. Ct. at 2537 (emphasis in original).
Although the decision in Blakely was limited to Washington State’s sentencing
(continued...)
-4-
foreclosed by our opinion in United States v. Green, No. 04-5105 (10th Cir.
May 6, 2005), wherein we held that the definition of “statutory maximum” for
purposes of appellate waivers is consistent with its ordinary meaning–“the longest
sentence that the statute punishing a crime permits a court to impose.” Green,
No. 04-5105, slip op. at 24. Defendant does not argue that his sentence exceeds
the maximum authorized by statute.
Accordingly, we enforce Defendant’s waiver of his appellate rights found
in his plea agreement and DISMISS this appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
3
(...continued)
scheme, the Supreme Court, in reaching its ultimate holding in United States v.
Booker, applied the Blakely definition of “statutory maximum” to the federal
sentencing system. See Booker, 125 S. Ct. at 749.
-5-