on the briefs:[*]
from the United States District Court for the District of
Colorado (D.C. No. 1:17-CR-00339-PAB-2)
Thomas Truskoski, Ryan Thomas Truskoski, P.A., Las Cruces,
New Mexico, for Defendant-Appellant.
C. Troyer, United States Attorney, Marissa R. Miller,
Assistant United States Attorney, Denver, Colorado, for
HOLMES, O'BRIEN, and BACHARACH, Circuit Judges.
matter is before the court on the government's motion to
dismiss defendant Giavanni Edward Miles's appeal because
it falls within the scope of the appeal waiver contained in
his Plea Agreement. We grant the government's motion and
dismiss the appeal.
pleaded guilty to two counts of theft of firearms from a
federal firearms licensee, in violation of 18 U.S.C. §
922(u). He was sentenced to two concurrent 70-month terms of
imprisonment. In his Plea Agreement, Miles “knowingly
and voluntarily” waived his right to appeal “any
matter in connection with this prosecution, conviction, or
sentence unless it meets one of the following criteria: (1)
the sentence exceeds the maximum penalty provided in the
statute of conviction; (2)the sentence exceeds the applicable
advisory guideline range; or (3) the government appeals the
sentence imposed.” Mot. to Enforce, Attach. A at 2.
The Plea Agreement further provided: “If any of these
three criteria apply, the defendant may appeal on any ground
that is properly available in an appeal that follows a guilty
government filed a motion to enforce Miles's appeal
waiver under United States v. Hahn, 359 F.3d 1315
(10th Cir. 2004) (en banc) (per curiam). In evaluating a
motion to enforce a 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.” Id. at 1325.
first argues that his appeal waiver is unconscionable and
contrary to public policy because it is one-sided: he waived
his right to appeal, but the government did not. Emphasizing
our holding that “contract principles govern plea
agreements, ” id. at 1324-25, he asserts that
the non-mutual appeal waiver makes his Plea Agreement an
unenforceable adhesion contract.
not addressed this issue, but several other circuits have
rejected Miles's proposition and similar contentions. In
United States v. Powers, 885 F.3d 728, 732-33 (D.C.
Cir. 2018), the court held that a plea agreement was not an
unenforceable adhesion contract where it limited the
defendant's, but not the government's, appeal rights.
The court reasoned that “[a]n appeal waiver . . . gives
the defendant an additional bargaining chip to use in
securing a plea agreement with the government, ” and it
held that a bargained-for appeal waiver is enforceable
“unless the defendant enters into it unknowingly,
unintentionally, or involuntarily.” Id.
(internal quotation marks omitted).
United States v. Hare, 269 F.3d 859, 861-62 (7th
Cir. 2001), the court rejected a defendant's challenge to
his appeal waiver as lacking consideration because the
government had not also waived its right to appeal. It held:
The prosecutor dismissed two out of three counts and promised
to recommend a lower sentence if certain conditions were met.
That's plenty of consideration for [the defendant's]
promises-and contract law does not require consideration to
be broken down clause-by-clause, with each promise matched
against a mutual and similar promise by the other side.
Id. at 861 (internal quotation marks omitted);
see also United States v. Hammond, 742 F.3d 880,
883-84 (9th Cir. 2014) (“[T]he idea behind a plea
agreement is that each side waives certain rights to obtain
some benefit. But there are ample reasons that a defendant
might enter a plea agreement short of extinguishing the
government's right to appeal, including the possibility