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United States v. Miles

United States Court of Appeals, Tenth Circuit

August 29, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GIAVANNI EDWARD MILES, a/k/a No Lack, Defendant - Appellant.

         Submitted on the briefs:[*]

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00339-PAB-2)

          Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A., Las Cruces, New Mexico, for Defendant-Appellant.

          Robert C. Troyer, United States Attorney, Marissa R. Miller, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

          Before HOLMES, O'BRIEN, and BACHARACH, Circuit Judges.

          PER CURIAM

         This 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.

         Miles 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 plea.” Id.

         The 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.

         Miles 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.

         We have 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).

         In 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 ...


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