Appellate Case: 22-2143 Document: 010110996960 Date Filed: 02/08/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2143
(D.C. No. 1:21-CR-00297-JB-1)
DEAN GROSS, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before ROSSMAN, KELLY, and MURPHY, Circuit Judges. **
_________________________________
Defendant-Appellant Dean Gross pled guilty to escaping from federal custody, 18
U.S.C. § 751(a), and was sentenced to 27 months’ imprisonment and three years’
supervised release. 1 R. 24–33, 126–27. In the plea agreement, Mr. Gross agreed to
waive appellate review of his conviction and sentence, with a narrow exception allowing
him to argue on appeal that this court incorrectly decided United States v. Sack, 379 F.3d
1177 (10th Cir. 2004). 1 R. 29–30. We have jurisdiction under 28 U.S.C. § 1291 and 18
*
This order and judgment is not binding precedent, except under the doctrines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.
**
After examining the briefs and appellate record, 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.
Appellate Case: 22-2143 Document: 010110996960 Date Filed: 02/08/2024 Page: 2
U.S.C. § 3742(a). We affirm on the preserved issue and dismiss the balance of the
appeal.
Background
After being placed in pretrial custody at La Pasada Halfway House, Mr. Gross left
without obtaining permission from pretrial services officers or employees. 1 R. 26–27.
A warrant was issued for his arrest, and Mr. Gross was later apprehended by law
enforcement and transferred to federal custody. 2 R. 6. In exchange for his guilty plea
on the escape charge, the government agreed to drop a false statement count, 18 U.S.C.
§ 1001(a)(2). 1 R. 30. As relevant here, the plea agreement contained the following
waiver:
[T]he Defendant knowingly waives the right to appeal the Defendant’s
conviction(s) and any sentence, including any fine, within the statutory
maximum authorized by law, as well as any order of restitution entered by
the Court. The Defendant also waives the right to appeal any sentence
imposed below or within the Guideline range upon a revocation of supervised
release in this cause number.
Id. at 29–30. Notwithstanding the waiver, the agreement allowed Mr. Gross to appeal
“[t]he denial or rejection of any motion or any argument, oral or written, claiming that the
United States Court of Appeals for the Tenth Circuit’s decision in [Sack], was incorrectly
decided.” Id. at 30. In his opening brief to this court, Mr. Gross made several arguments
that the government contends are barred by his waiver. The government moved to
enforce the waiver, but this court denied the motion without prejudice as untimely under
10th Cir. R. 27.3(A)(3)(b). This court subsequently denied reconsideration, explaining
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that our practice is either to grant a motion to enforce an appeal waiver and dismiss an
appeal in its entirety, or deny the motion and send the entire appeal to a merits panel.
Discussion
On appeal, Mr. Gross makes several arguments in addition to arguing that Sack
was wrongly decided. First, he argues he was afforded inadequate notice regarding what
conduct would subject him to a criminal conviction because the language of his release
conditions was ambiguous. Aplt. Br. at 15–21. Second, he argues his plea was invalid
because it was not knowing, voluntary, and intelligent. Id. at 21–30. Finally, he argues
the superseding indictment was factually inadequate and failed to protect him from a
double jeopardy violation. Id. at 30–34. The government seeks enforcement of the
waiver.
A. Appeal Waiver Enforcement
We review de novo whether a defendant’s appeal waiver is enforceable. United
States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). “A particular waiver’s
enforceability hinges on: ‘(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.’” Id. (quoting United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004)).
We address each factor in turn.
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1. Scope of Appellate Waiver
First, Mr. Gross’s arguments that he was afforded inadequate notice by his
ambiguous release conditions 1 and that the superseding indictment was factually
inadequate certainly fall within the scope of the waiver. Both arguments challenge his
conviction, which the waiver expressly prohibits. We do not consider them
independently. To the extent that Mr. Gross argues his plea was not knowing, voluntary,
and intelligent, we consider that in the next step of our analysis as part of our inquiry
under Ibarra-Coronel and Hahn.
2. Knowing and Voluntary
Normally, when a defendant challenges only the appeal waiver provision of a
plea agreement, we are not obligated to consider the validity of the plea itself. United
States v. Rollings, 751 F.3d 1183, 1190 n.5 (10th Cir. 2014). But when the defendant
asserts that the plea itself was not knowing and voluntary — as Mr. Gross does here —
we may examine the entire plea, including the appeal waiver and the plea provisions. Id.
at 1189–1190. The parties agree that Mr. Gross failed to raise this argument below, so
we review for plain error. Aplt. Br. at 21; Aplee. Br. at 14.
We find no error, plain or otherwise, with Mr. Gross’s plea. While Mr. Gross
understands that he left the halfway house without permission, he continues to argue that
1
On its own, this argument expressly challenges Mr. Gross’s conviction,
which is prohibited by the waiver. However, Mr. Gross maintains that the inadequate
release conditions are the reason why his plea was not knowing, voluntary, and
intelligent. Aplt. Br. at 24–30. Thus, while we do not consider the argument
independently, we do address it in analyzing whether the plea was knowing and
voluntary.
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“the conflicting detention provisions of his pretrial release conditions would have
prevented him from understanding what they required.” Aplt. Br. at 26. For instance,
Mr. Gross argues that his detention provisions required that he reside at the halfway
house while restricting him to “home detention[.]” Id. at 12. According to Mr. Gross, he
“could not both have resided at the halfway house and at his home.” Id.
The record does not support this contention. When Mr. Gross was initially placed
in pretrial custody at La Pasada, the court stated, “I’m not willing to allow or to authorize
Mr. Gross’ release back home.” 1 Aplee. Supp. App. 55. As an alternative, the court
agreed to “authorize Mr. Gross’ release to La Pasada Halfway House” and instructed Mr.
Gross that he would be subject to “GPS monitoring on home detention at La Pasada.” Id.
at 55–56. The court informed Mr. Gross that he could leave for specified appointments
but reiterated that “otherwise, you have to be at La Pasada.” Id. at 55.
Mr. Gross also claims his release conditions, plea hearing, sentencing hearing,
and plea agreement failed to inform him of his obligation to obtain permission to leave
the halfway house and that the court never asked whether he understood this requirement.
Aplt. Br. at 25. But the plea agreement and plea colloquy are to the contrary. Mr. Gross
confirmed that he was not impaired or coerced, 2 Aplee. Supp. App. 7–8, 24–26; that he
understood the proceeding, id. at 26; that he understood the charges, including the
elements of the offense and the possible penalties, id. at 11–13; and that he read and
understood “each and every term of” the plea agreement and reviewed the agreement
with counsel. Id. at 13–14, 19. When asked by the magistrate judge to describe why he
was guilty of the offense, Mr. Gross responded, “I left the halfway house without
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permission.” Id. at 22. Mr. Gross acknowledged that he knew he lacked permission to
leave. Id. at 23. Finally, the court carefully reviewed Mr. Gross’s appeal waiver and
confirmed his understanding. Id. at 19–21. Nothing in the record suggests that Mr.
Gross’s plea was not knowing, voluntary, and intelligent.
3. Miscarriage of Justice
An appellate waiver results in a miscarriage of justice in four situations: “[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.” Hahn, 359 F.3d at 1327 (alterations in original)
(citation omitted). Mr. Gross has not argued, nor does the record suggest, that the district
court relied on impermissible factors or that he received ineffective assistance of counsel;
he expressed satisfaction with counsel. 2 Aplee. Supp. App. 19. Mr. Gross was
sentenced far below the statutory maximum of five years. See 18 U.S.C. § 751(a). Thus,
only factor four is disputed. As discussed above, the plea and accompanying waiver were
knowing and voluntary — no miscarriage of justice occurred. We enforce the appeal
waiver, and we will dismiss the appeal except for the issue regarding Sack.
B. United States v. Sack
Mr. Gross argues that this court wrongly decided that an individual who resides at
a halfway house pursuant to pretrial release conditions is “in custody” for purposes of 18
U.S.C. § 751(a). Aplt. Br. at 14 (citing Sack, 379 F.3d 1177). Of course, Mr. Gross
recognizes that “[o]ne panel of this court cannot overrule the judgment of another panel
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absent en banc consideration.” Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1142
(10th Cir. 2023) (alteration in original) (citation omitted); Aplt. Br. at 15. He raises the
issue to seek certiorari from the Supreme Court. Thus, regarding that challenge, the
judgment is AFFIRMED, and the balance of the appeal is DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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