FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 30, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3229
(D.C. No. 6:10-CR-10080-EFM-2)
MATTHEW W. HUTCHINSON, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MATHESON, O’BRIEN, and BACHARACH, Circuit Judges.
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Matthew W. Hutchinson entered into a plea agreement containing a collateral
attack waiver. After he appealed the denial of a post-judgment motion, the
government moved to enforce the waiver under United States v. Hahn, 359 F.3d
1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We ordered Mr. Hutchison to
respond to the government’s motion to enforce the appeal waiver by December 15,
2017. He has not responded to the motion. We grant the motion to enforce and
dismiss the appeal.
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
In 2011, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement,
Mr. Hutchinson pleaded guilty to one count of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a) and (b)(1)(A). In accordance
with the plea agreement, he was sentenced to 120 months’ imprisonment, which was
below the calculated Sentencing Guidelines range. He did not file a direct appeal.
More than six years after his conviction, however, he filed a Fed. R. Crim. P. 36
“Motion to Correct Clerical Error.”
The Rule 36 motion alleged the presentence report erroneously stated it was
applying an enhancement for possession of a dangerous weapon, when no such
enhancement was applied. The probation officer responded, recognizing certain
mathematical errors (which had worked in Mr. Hutchinson’s favor) and asserting the
enhancement correctly applied based on the facts. Based on the response, the district
court denied the Rule 36 motion. It then denied reconsideration, noting
Mr. Hutchinson (1) was informed of the enhancement and could have objected at the
time of sentencing, and (2) received a stipulated 120-month sentence rather than a
higher sentence under the Guidelines—which, but for the mathematical errors, would
have been higher yet.
When Mr. Hutchinson appealed, the government moved to enforce the
collateral attack waiver in his plea agreement. Mr. Hutchinson has not responded to
the motion to enforce.
Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of [collateral attack] rights; (2) whether the defendant knowingly
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and voluntarily waived his [collateral attack] rights; and (3) whether enforcing the
waiver would result in a miscarriage of justice as we define herein.” 359 F.3d at
1325. A miscarriage of justice occurs “[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.” Id. at 1327 (internal quotation marks omitted).
All three Hahn factors are satisfied. First, because the district court did not
depart upward, the waiver provision precludes “any right to . . . collaterally attack
any matter in connection with this prosecution, the defendant’s conviction, or the
components of the sentence to be imposed” and “any right to challenge a sentence or
otherwise attempt to modify or change his sentence or manner in which it was
determined in any collateral attack . . . .” Mot. to Enforce, Attach. B at 5. That broad
waiver includes the Rule 36 motion within its scope. Second, Mr. Hutchinson
acknowledged both in the plea agreement and during the plea colloquy that his entry
into the plea agreement was knowing and voluntary, and he has not presented any
evidence to the contrary. See Hahn, 359 F.3d at 1325, 1329. And third, there is no
indication that enforcing the waiver would result in a miscarriage of justice as Hahn
defines that term.
Accordingly, the motion to enforce is granted, and the appeal is dismissed.
Entered for the Court
Per Curiam
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