F I L E D
United States Court of Appeals
Tenth Circuit
July 6, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-6279
v.
(D.C. No. CR-03-006)
(W.D. Okla.)
DAWN MARIE NELSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, MCKAY and HENRY, Circuit Judges.
In this direct criminal appeal, we hold that Defendant Dawn Marie Nelson’s
waiver of her appellate rights—made before the Supreme Court issued its opinion
in Blakely v. Washington, 124 S. Ct. 2531 (2004)—bars our consideration of
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Defendant’s claim that the district court imposed a sentence that violated Blakely.
We therefore DISMISS the appeal.
I. Background
Defendant Dawn Marie Nelson and eight co-defendants were indicted for
drug and firearms offenses in early 2003. Nelson agreed to plead guilty to a
superseding information. This information charged her with (1) being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)-(2); and (2)
knowingly and intentionally using a telephone in committing or facilitating
distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). The plea
agreement entered into by Defendant and the government on February 9, 2004
states:
[D]efendant in exchange for the promises and concessions made by
the United States in this plea agreement, knowingly and voluntarily
waives her right to:
a. Appeal or collaterally challenge her guilty plea and any
other aspect of her conviction, including but not limited
to any rulings on pretrial suppression motions or any
other pretrial dispositions of motions and issues;
b. Appeal, collaterally challenge, or move to modify under
18 U.S.C. § 3582(c)(2) or some other ground, her
sentence as imposed by the Court and the manner in
which the sentence is determined, provided the sentence
is within or below the applicable guideline range
determined by the Court to apply to this case. . . .
c. It is provided that (i) defendant specifically does not
waive the right to appeal an upward departure from the
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sentencing guideline range determined by the Court to
apply to this case, and (ii) her waiver of rights to appeal
and to bring collateral challenges shall not apply to
appeals or challenges based on changes in the law
reflected in Tenth Circuit or Supreme Court cases
decided after the date of this agreement that are held by
the Tenth Circuit or Supreme Court to have retroactive
effect.
Later on February 9, Defendant pled guilty to the superseding information
pursuant to this plea agreement.
In sentencing Defendant in August 2004—some two months after the
Supreme Court decided Blakely—the district court pronounced two alternative
sentences: one of 168 months’ imprisonment based on the application of the
sentencing guidelines, and an alternative sentence of 168 months’ imprisonment
based on the application of the relevant statutes, which was to be imposed in the
event that the sentencing guidelines were found unconstitutional. Defendant
timely appealed, asserting that the district court improperly enhanced her sentence
on the basis of drug amounts that were not ascertained by a jury, in violation of
Blakely. 1 After Defendant filed her opening brief in this appeal, the government
filed a brief raising, inter alia, the issue of Defendant’s appellate rights waiver.
1
Defendant’s citation of Blakely is sufficient to raise an argument under
United States v. Booker, 125 S. Ct. 738 (2005). See United States v. Clifton, 406
F.3d 1173, 1175 n.1 (10th Cir. 2005).
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Defendant had an opportunity to file a reply brief addressing the government’s
arguments but failed to do so.
II. Analysis
“[W]e generally enforce plea agreements and their concomitant waivers of
appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004)
(en banc) (per curiam). In considering whether to dismiss appeals brought by
defendants who have waived their appellate rights in a plea agreement, we
determine whether (1) the appeal falls within the scope of the appellate waiver;
(2) the defendant’s waiver of his or her appellate rights was knowing and
voluntary; and (3) enforcement of the appellate waiver would result in a
miscarriage of justice. Id. at 1325.
In this case, the government argues that Defendant’s appeal falls within the
scope of her appellate rights waiver, the waiver was knowing and voluntary, and
enforcement of the waiver would not result in a miscarriage of justice. Defendant
fails to counter any of these arguments. Defendant had an opportunity to make
such assertions in a reply brief, but defense counsel did not even file such a brief.
Accordingly, we must enforce Defendant’s appellate rights waiver and dismiss her
appeal. See Hahn, 359 F.3d at 1328-29. 2
2
Hahn states that, in cases in which a defendant files a notice of appeal
after waiving his or her appellate rights, the government should file a motion to
(continued...)
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Even if Defendant had argued against the enforcement of the appellate
rights waiver, we would find that waiver enforceable under the three-part Hahn
test. Moreover, even if we were to refrain from enforcing Defendant’s appellate
rights waiver, we would deny Defendant relief. The district court’s determination
of drug quantity at sentencing constituted harmless error because the district court
imposed identical alternative sentences under the sentencing guidelines and the
relevant statutes. See United States v. Serrano-Dominguez, 406 F.3d 1221, 1223-
24 (10th Cir. 2005).
2
(...continued)
enforce the plea agreement before the parties brief the underlying merits of the
case. See 359 F.3d at 1328. In this case, the government did not file such a
motion.
The approach taken by the government in this case is not consistent with
the procedure laid out in Hahn, and we urge the government to employ the proper
procedure in the future. Nonetheless, the government’s erroneous approach does
not preclude us from enforcing Defendant’s appellate rights waiver. Because
Defendant had an opportunity to file a reply brief addressing the government’s
waiver argument, Defendant has not been prejudiced by the fact that the
government raised the argument in its appellate brief. The fact that Defendant did
not actually file such a reply brief does not alter this conclusion. See generally
United States v. Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005) (emphasizing the
substantive nature of the analysis that we apply before considering the appellate
arguments of a defendant who has waived his or her appellate rights, not the
procedure followed by the government in responding to the defendant’s filing of a
notice of appeal).
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III. Conclusion
For the foregoing reasons, we DISMISS Defendant’s appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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