FILED
United States Court of Appeals
Tenth Circuit
March 15, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-6257
LAVERTISE ANTWION CUDJOE,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:06-CR-00248-R-3)
Submitted on the briefs: *
Michael S. Johnson, Oklahoma City, Oklahoma, for Defendant-Appellant.
Leslie M. Maye, Assistant United States Attorney, (Sanford C. Coats, United
States Attorney, on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
BALDOCK, Circuit Judge.
*
After examining the briefs and appellate record, 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.
Pursuant to a plea agreement, Lavertise Antwion Cudjoe pleaded guilty to
conspiracy to possess with intent to distribute and to distribute controlled
substances, in violation of 21 U.S.C. §§ 841 and 846 (Count 1), and to carrying a
firearm during and in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i) (Count 74). He was sentenced to 360 months of
imprisonment for Count 1 and a consecutive 60 months of imprisonment for
Count 74, for a total of 420 months. On appeal, we concluded that the
government had breached its obligation to refrain from recommending a sentence
greater than 360 months and remanded for resentencing. United States v. Cudjoe,
534 F.3d 1349, 1356-57 (10th Cir. 2008).
On remand, the district court sentenced Mr. Cudjoe to 300 months of
imprisonment for Count 1 and 60 months for Count 74, for a total of 360 months.
Mr. Cudjoe again appealed. His counsel filed an opening brief and a motion to
withdraw under Anders v. California, 386 U.S. 738 (1967). Availing himself of
the opportunity to respond to his counsel’s submission, see id. at 744, Mr. Cudjoe
filed a response and a supplement identifying several issues he wishes to appeal.
But in its response brief, the government moved to enforce the appeal waiver in
Mr. Cudjoe’s plea agreement. See United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (en banc) (per curiam). Accordingly, the first (and, as it turns
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out, the only) issue in this appeal is whether the appeal waiver should be enforced.
Under Anders, we conduct a “full examination of all the proceedings, to
decide whether the case is wholly frivolous.” 386 U.S. at 744. Under Hahn, “in
reviewing appeals brought after a defendant has entered into an appeal waiver,”
we consider: “(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.” 359 F.3d at 1325. Because all of the Hahn factors are
satisfied, we dismiss the appeal. But because this analysis requires us to
recognize that our precedent has been abrogated by intervening statutory changes,
we cannot conclude that the appeal is entirely frivolous. Thus, we deny counsel’s
motion to withdraw pursuant to Anders.
1. Scope of the Waiver
The waiver provides:
[D]efendant in exchange for the promises and concessions made by
the United States in this plea agreement, knowingly and voluntarily
waives his right to:
a. Appeal . . . his guilty plea, sentence and restitution
imposed, and any other aspect of his conviction . . . ;
b. Appeal . . . his sentence as imposed by the Court and the
manner in which the sentence is determined, provided the sentence is
within or below the advisory guideline range determined by the Court
to apply to this case. . . .
c. It is provided that defendant specifically does not waive
the right to appeal a sentence above the advisory sentencing
guideline range determined by the Court to apply to this case.
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Record on Appeal, Vol. 1 at 136.
Counsel identifies no issues for appeal, but Mr. Cudjoe lists seven potential
issues, all involving his sentence: (1) the calculation of his criminal history
score; (2) the assessment of a two-level enhancement for obstruction of justice
under Sentencing Guideline § 3C1.2; (3) the imposition of a five-year term of
supervised release on Count 74; (4) whether the court considered the § 3553(a)
factors in imposing his sentence; (5) whether the court actually “resentenced” him
as this court ordered in the first appeal because it did not hold a de novo
sentencing hearing; (6) that the Supreme Court could decide in the then-pending
cases of United States v. Abbott, No. 09-479, and Gould v. United States,
No. 09-7073, that his firearms sentence should not run consecutive to his drug
sentence; 1 and (7) that he is entitled to a reduced sentence under the Fair
Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372, which lowered the
sentencing ratio between crack and powder cocaine. Given that Mr. Cudjoe’s
sentence was within the Guidelines range determined by the district court, and
that all of these issues seek to attack that sentence, with one exception they
clearly fall within the scope of his appeal waiver.
1
This issue is moot, as the Supreme Court has issued a single opinion
deciding both cases unfavorably to Mr. Cudjoe’s position. See Abbott v. United
States, 131 S. Ct. 18, 23 (2010).
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The exception is Mr. Cudjoe’s argument that the district court erroneously
sentenced him to a five-year term of supervised release on Count 74. 2 Mr. Cudjoe
points out that in his petition to enter a guilty plea, the parties agreed that Count
74 carried a maximum of three years of supervised release. Mr. Cudjoe’s
understanding is supported by United States v. Corey, 999 F.2d 493, 496
(10th Cir. 1993), in which this court stated that a violation of § 924(c)(1) is a
Class D felony, subject to a three-year maximum of supervised release. If the
five-year term of supervised release exceeds the statutory maximum, then it is an
illegal sentence. See United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n.10
(10th Cir. 2005). Under other circumstances, we have held that an illegal
sentence is outside the scope of an appeal waiver. See United States v. Hudson,
483 F.3d 707, 710 (10th Cir. 2007) (“[R]egardless of whether Defendant’s waiver
of appellate rights would otherwise be enforceable, he cannot be deemed to have
waived his right to appeal the legality of the court’s restitution order.”); see also
United States v. Gordon, 480 F.3d 1205, 1208-09 (10th Cir. 2007) (same); United
States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001) (stating that “a waiver
may not be used to preclude appellate review of a sentence that exceeds the
statutory maximum” (alteration and quotation omitted)). And an illegal sentence
2
The court ordered the United States and Mr. Cudjoe’s counsel to file
supplemental briefs regarding the term of supervised release for Count 74. The
United States filed its brief, and Mr. Cudjoe filed a pro se supplemental brief,
which his counsel adopted.
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“trigger[s] per se, reversible, plain error.” Gonzalez-Huerta, 403 F.3d at 739
n.10.
Notwithstanding Corey, however, the supervised release provision does not
exceed the statutory maximum, and thus it is not an illegal sentence. After this
court issued Corey, Congress amended § 924(c)(1) to add subsections (A)(i), (ii),
and (iii) and to change the flat five-year sentence in the previous § 924(c)(1) to a
minimum five-year sentence for a violation of § 924(c)(1)(A)(i). See Criminal
Use of Guns Act, P.L. 105-386, 112 Stat. 3469 (1998). “A person convicted of
the primary offense of using or carrying a firearm during a crime of violence was
once to ‘be sentenced to imprisonment for five years,’ but under the current
version he or she is to ‘be sentenced to a term of imprisonment of not less than
5 years.’” United States v. O’Brien, 130 S. Ct. 2169, 2179 (2010). As amended,
the sentencing range for a violation of § 924(c)(1)(A)(i) extends to life
imprisonment. See United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002).
Thus, this offense now is properly classified as a Class A felony, see 18 U.S.C.
§ 3559(a)(1), and Class A felonies are subject to a statutory maximum of five
years of supervised release, see id. § 3583(b)(1). Accordingly, imposing a term
of five years of supervised release on Count 74 did not exceed the statutory
maximum. It follows that the sentence was not illegal. And because the sentence
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imposed was not an illegal sentence, Mr. Cudjoe’s challenge to it also falls within
the scope of the appeal waiver. 3 This portion of the Hahn analysis is satisfied.
2. Knowing and Voluntary
In evaluating whether an appeal waiver was knowing and voluntary, “we
examine whether the language of the plea agreement states that the defendant
entered the agreement knowingly and voluntarily” and “we look for an adequate
Federal Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. It is
Mr. Cudjoe’s burden to present evidence establishing that he did not understand
the waiver. See id. at 1329; United States v. Edgar, 348 F.3d 867, 872-73
(10th Cir. 2003).
Both the plea agreement and the Rule 11 colloquy clearly set out the appeal
waiver and the knowing and voluntary nature of the plea. Mr. Cudjoe has not
presented any argument or evidence that the waiver was unknowing or
involuntary, and our independent review did not identify any basis to determine
3
Mr. Cudjoe points out that his petition to enter a guilty plea stated that
Count 74 was subject to a maximum of three years of supervised release. That
understanding also was reflected in the plea agreement. But at best, the
acknowledgment was a mutual mistake by the parties. While a plea agreement
may be voidable on the basis of mutual mistake, see United States v. Frownfelter,
626 F.3d 549, 555 (10th Cir. 2010), Mr. Cudjoe has not sought to rescind the
agreement or satisfied the applicable three-part test. Moreover, the district court
correctly advised Mr. Cudjoe of the five-year supervised release period during the
plea colloquy, and Mr. Cudjoe knew that Count 1 was subject to a five-year
period of supervised release that would be served concurrently to any term of
supervised release on Count 74.
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otherwise. Thus, we conclude that this portion of the Hahn analysis also is
satisfied.
3. Miscarriage of Justice
An appeal waiver will not be enforced where it will result in a miscarriage
of justice, which Hahn defined as where (1) “the district court relied on an
impermissible factor such as race”; (2) “ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid”; (3) “the
sentence exceeds the statutory maximum”; or (4) “the waiver is otherwise
unlawful.” 359 F.3d at 1327 (quotation omitted).
Mr. Cudjoe does not suggest that any of these factors are implicated in this
case, and our independent review does not indicate to the contrary. 4 Therefore,
no miscarriage of justice will result from enforcing the waiver. The third portion
of the Hahn analysis is satisfied.
Conclusion
The motion to adopt the pro se response is GRANTED. The motion to
withdraw pursuant to Anders is DENIED. The motion to enforce the plea
agreement is GRANTED, and this appeal is DISMISSED.
4
Our decision that the five-year term of supervised release on Count 74 is
not an illegal sentence precludes any argument that the imposition of that
sentence creates a miscarriage of justice under the third Hahn definition of that
term.
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The United States concedes that Mr. Cudjoe’s judgment of conviction
inaccurately recites his conviction on Count 74 as a violation of
§ 924(c)(1)(A)(ii), rather than § 924(c)(1)(A)(i). The United States is directed to
file a motion in the district court to correct this clerical error in the judgment.
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