Appellate Case: 22-6134 Document: 010110782945 Date Filed: 12/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-6134
(D.C. No. 5:21-CR-00191-D-1)
EUGENE DESHON HALL, a/k/a Eugene (W.D. Okla.)
Deshan Hall; Shon Hall; Eugene Deshon
Hally; Prince,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HARTZ, BACHARACH, and EID, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver in Eugene Deshon Hall’s plea agreement. Exercising jurisdiction
under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
Mr. Hall pleaded guilty to one count of unlawful possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1). Pursuant to the agreement, he waived
his “right to appeal [his] guilty plea” and his “sentence as imposed by the Court . . .
and the manner in which the sentence is determined” unless “the sentence is above
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 22-6134 Document: 010110782945 Date Filed: 12/14/2022 Page: 2
the advisory Guidelines range determined by the Court to apply to [his] case.” Mot.
to Enforce, Attach. 1 at 8-9.
The district court accepted Mr. Hall’s guilty plea as knowing and voluntary,
overruled his objections to the presentence report, determined that the applicable
guidelines range was 110 to 120 months, and sentenced him at the bottom of that
range to 110 months’ imprisonment. Despite his appeal waiver, Mr. Hall filed this
appeal. His docketing statement indicates that the issue he intends to raise on appeal
is that his sentence is both procedurally and substantively unreasonable.
In ruling on a motion to enforce, 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.” United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam).
Mr. Hall acknowledges that his appeal falls within the scope of his appeal
waiver and that the waiver was knowing and voluntary, so we do not address those
issues. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (court need
not address uncontested Hahn factors). He contends, however, that enforcing the
waiver would be a miscarriage of justice because the district court improperly
increased the base offense level based on his previous convictions for controlled
substance offenses. Specifically, he claims the state drug offenses he was convicted
of do not meet the definition of a “controlled substance offense” under U.S.
Sentencing Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018).
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A miscarriage of justice occurs 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.”
Hahn, 359 F.3d at 1327 (internal quotation marks omitted). Mr. Hall’s argument
regarding the district court’s calculation of the guidelines range falls within the
fourth miscarriage-of-justice scenario.
“The burden rests with the defendant to demonstrate that the appeal waiver
results in a miscarriage of justice.” United States v. Anderson, 374 F.3d 955, 959
(10th Cir. 2004). To show that an appeal waiver is “otherwise unlawful,” the
defendant must prove that the alleged error “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings[.]” Hahn, 359 F.3d at 1327
(internal quotation marks omitted). The “inquiry is not whether the sentence is
unlawful, but whether the waiver itself is unlawful because of some procedural error
or because no waiver is possible.” United States v. Sandoval, 477 F.3d 1204, 1208
(10th Cir. 2007).
Mr. Hall’s argument challenges the propriety of his sentence, not the legality
of his appeal waiver. But a defendant may not rely on the “otherwise unlawful”
exception to avoid enforcement of an appeal waiver based on alleged errors in the
calculation of his sentence. See United States v. Smith, 500 F.3d 1206, 1212-13
(10th Cir. 2007) (explaining that the miscarriage-of-justice inquiry “looks to whether
the waiver is otherwise unlawful, not to whether another aspect of the proceeding
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may have involved legal error,” and holding that a defendant may not rely on alleged
errors at sentencing to avoid enforcement of an appeal waiver (citation and internal
quotation marks omitted)).
CONCLUSION
For the reasons discussed above, we grant the government’s motion to enforce,
and dismiss the appeal.
Entered for the Court
Per Curiam
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United States v. Hall
Combined Opinion