FILED
United States Court of Appeals
Tenth Circuit
September 30, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff -Appellee,
v. No. 10-4066
(D.C. No. 2:08-CR-00304-DAK-8)
STEVEN LANE ACKERMAN, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and HARTZ, Circuit Judges.
Pursuant to a plea agreement, Steven Lane Ackerman pleaded guilty to one
count of possession of five grams or more of actual methamphetamine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
him to 100 months of imprisonment. The government has moved to enforce the
plea agreement’s appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1325
*
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 This order and judgment is not binding precedent, except under the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.
(10th Cir. 2004) (en banc) (per curiam). In response, Mr. Ackerman contends that
the appeal waiver should not be enforced because the government breached the
plea agreement at sentencing.
“[A]n appellate waiver is not enforceable if the Government breaches its
obligations under the plea agreement.” United States v. Rodriguez-Rivera,
518 F.3d 1208, 1212 (10th Cir. 2008). Because Mr. Ackerman did not object in
the district court, our review is for plain error. See Puckett v. United States,
129 S. Ct. 1423, 1428 (2009); United States v. Bullcoming, 579 F.3d 1200, 1205
(10th Cir. 2009). “Thus, he cannot prevail unless he establishes that the district
court committed error, the error was plain, and the error affected his substantial
rights.” Bullcoming, 579 F.3d at 1205 (quotation omitted).
Mr. Ackerman contends that the government breached its obligation to
recommend a sentence at the low end of the applicable Guidelines range by
requesting before and at sentencing that the district court impose “‘a sentence
within the guideline range’” and “‘a guideline sentence.’” Aplt. Resp. at 2-3
(quoting R. Doc. 303 at 8 (government’s response to appellant’s sentencing
memorandum), and Mot. to Enforce, Attach. C (sentencing transcript) at 50). We
doubt that this conduct constituted a breach; the government’s references came in
response to Mr. Ackerman’s request for and argument in support of a
below-Guideline sentence, and must be understood in that context. And at the
end of his sentencing presentation, the prosecutor explicitly upheld his obligation,
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stating, “[b]ased on all [the sentencing factors], Your Honor, and the total record,
a sentence of a hundred months, the low end of the guideline range, is more than
fair.” Mot. to Enforce, Attach. C at 51.
But even if there were a plain error, it did not affect Mr. Ackerman’s
substantial rights. To satisfy this prong, he “must demonstrate that [the error]
affected the outcome of the district court proceedings.” Puckett, 129 S. Ct. at
1429. “When the rights acquired by the defendant relate to sentencing, the
outcome he must show to have been affected is his sentence.” Id. at 1433 n.4
(quotations omitted). The district court sentenced him to 100 months of
imprisonment, the bottom of the Guideline range of 100 to 125 months. Because
he received the sentence the prosecutor had promised to recommend, he cannot
show prejudice. See id. at 1432-33 (“The defendant whose plea agreement has
been broken by the Government will not always be able to show prejudice, either
because he obtained the benefits contemplated by the deal anyway (e.g., the
sentence that the prosecutor promised to request) or because he likely would not
have obtained those benefits in any event.”) (emphasis added)).
Mr. Ackerman has not established any plain error with regard to the
government’s alleged breach of its obligations under the plea agreement. Because
Mr. Ackerman makes no other arguments challenging the validity of the appellate
waiver, this appeal is DISMISSED pursuant to the waiver. See United States v.
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Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (holding that this court need not
address a Hahn factor that the defendant does not contest).
ENTERED FOR THE COURT
PER CURIAM
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