F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 1, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-3394
DALE CLAYTON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 03-CR-40045-SAC)
Submitted on the Briefs: *
Raymond P. Moore, Federal Public Defender and Jill M. Wichlens, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Eric F. Melgren, United States Attorney and James A. Brown, Assistant United
States Attorney, Topeka, Kansas, for Plaintiff-Appellee.
Before SEYMOUR , HARTZ , and McCONNELL, Circuit Judges.
HARTZ , Circuit Judge.
*
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); 10 th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Defendant Dale Clayton pleaded guilty to one count of distribution of a
mixture or substance containing a detectable amount of cocaine base, in violation
of 21 U.S.C. § 841(a)(1). The plea agreement included the following waiver of
his right to appeal his conviction and sentence:
9. Waiver of Appeal and Collateral Attack. Defendant
knowingly and voluntarily waives any right to any appeal or
collateral attack on any matter in connection with this prosecution
and sentence, except that defendant reserves the right to appeal the
district court’s finding relating to offense conduct or relevant
conduct pursuant to U.S.C.G. § 1B1.3. The defendant is aware that
Title 18, U.S.C. § 3742 affords a defendant the right to appeal the
sentence imposed. . . . In other words, the defendant waives the right
to appeal the sentence imposed in this case except to the extent, if
any, the court departs upwards from the applicable sentencing
guidelines range determined by the court.
Plea Agreement ¶ 9, R. Vol. I Doc. 35. The issue before us is whether the waiver
is enforceable when the government did not file a timely motion to dismiss the
appeal under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc).
We hold that it is.
Based on Defendant’s prior convictions, the presentence report (PSR)
concluded that he was a career offender. See United States Sentencing Guidelines
(USSG) § 4B1.1. His base offense level of 32, see USSG § 4B1.1(b)(C), reduced
three levels for acceptance of responsibility, see USSG § 3E1.1(a)-(b), yielded a
total offense level of 29. The resulting guidelines range at criminal history
category VI, see USSG § 4B1.1(b), is 151 to 188 months.
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Defendant filed four objections to the PSR, none related to the career-
offender determination. All were mooted by that determination, because a career
offender convicted of Defendant’s offense is subject to a minimum base offense
level of 32 and a criminal-history category of VI. See USSG § 4B1.1(b)(C). On
September 24, 2004, the district court sentenced Defendant to 151 months’
imprisonment.
On appeal Defendant argues that it was structural error under United States
v. Booker, 125 S.Ct. 738 (2005), for the district court to sentence him under
mandatory guidelines. We have recently held that a knowing and voluntary
waiver may preclude an appeal based on Booker error if the error is within the
scope of the waiver. Compare United States v. Maldonado, __ F.3d __, 2005 WL
1395112 (10th Cir. 2005) (per curiam) (Booker error was waived) and United
States v. Taylor, __ F.3d __, 2005 WL 1519115 (10th Cir. 2005) (Booker error
was outside scope of waiver).
Defendant suggests only one reason why the waiver is unenforceable:
Citing Hahn, 359 F.3d at 1328, he notes the government’s failure to file a timely
motion to enforce the waiver. In Hahn this court established a procedure by
which the government could enforce appeal waivers in criminal cases before
having to address the merits of the appeal. We held that the government could
file a “Motion for Enforcement of the Plea Agreement,” and announced that Tenth
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Circuit Rule 27.2(A)(1) would be amended to allow the government to file such a
dispositive motion. Hahn, 359 F.3d at 1328.
Rule 27.2(A) presently provides:
(A) Motions to dismiss or affirm.
(1) Types. A party may file only the following dispositive
motions:
(a) a motion to dismiss the entire case for lack of
appellate jurisdiction;
(b) a motion for summary disposition because of a
supervening change of law or mootness; or
(c) a motion to remand for additional trial court or
administrative proceedings.
...
(3) Time to file. The motion must be filed within 15 days after
the notice of appeal is filed. A motion filed later must explain
why it could not have been filed in the 15-day period.
...
The core of Defendant’s argument is Paragraph 3, which requires the motion to be
filed within 15 days of the notice of appeal.
The government relies on Paragraph 3’s exception to the 15-day limit when
delayed filing is properly explained. It argues that its failure to file within 15
days of the notice of appeal is excusable because “the defendant did not identify
his grounds for appeal until submission of his opening brief.” Aplee. Br. at 14. It
contends that it could not have known whether Defendant’s unidentified grounds
were among those excepted from the waiver.
This argument is dubious on two grounds. First, the district court did not
depart upward from the guidelines range, so the government could assume that the
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appeal fell within the waiver. Second the government knew the grounds of appeal
when it received Defendant’s brief, but it still did not seek enforcement of the
waiver for another 20 days.
But all this is beside the point. The government seeks enforcement of the
waiver in its brief, not by motion. Nothing in Rule 27.2 provides that a
contention that can be raised by motion must be raised by motion, on pain of
forfeiture. Rather, Rule 27.2 is a convenience to parties who have motions that, if
meritorious, moot issues that would otherwise need to be briefed. The 15-day
deadline for filing such motions prevents the tactical use of a motion to delay
briefing. Certainly, failure to file a motion under Rule 27.2(A)(1)(a) to dismiss
for lack of appellate jurisdiction does not foreclose raising the issue in a brief, or
even at oral argument, because lack of jurisdiction can be raised at any time in the
proceedings, see United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.
1994)(“[A] challenge to the court’s jurisdiction may be raised at any time. . . .”).
And we remand for additional proceedings based on arguments in the briefs
without considering whether the issue was waived by failure to file a motion
under Rule 27.2(A)(1)(c). See Clifton v. Chater, 79 F.3d 1007 (10 th Cir. 1996).
Nor does anything in Hahn require the government to file a Rule 27.2
motion to enforce a waiver of the right to appeal. Hahn’s stated purpose in
allowing a Rule 27.2 motion was “[t]o preserve the benefit of the government’s
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bargain.” Hahn, 359 F.3d at 1328. We approved this procedure because our prior
practice of referring the government’s motion to dismiss to the merits panel and
ordering briefing on the merits “in effect, rob[bed] [the government] of the
benefit of its bargain.” Id. But the government is still free to forego some of the
benefit—not being required to file a brief addressing the merits—without losing
the entire benefit. A Rule 27.2 motion is one method whereby the government
may choose to enforce the waiver, but the rule does not prevent the government
from seeking enforcement through other means, such as its brief on the merits.
Because Defendant’s appeal is within the scope of an enforceable waiver,
we need not address the merits. The appeal is DISMISSED.
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