United States v. Holzer, No. 21-1080, __F.4th__WL 1207861 (10th Cir. Apr. 25, 2022) (challenge to special condition of supervised release is barred by appellate waiver) Federal undercover agents caught Mr. Hozier taking a substantial step towards bombing a synagogue in Colorado. He pleaded guilty to intentionally attempting to obstruct free exercise of religious beliefs through force in violation of 18 U.S.C. 247(a)(2) and (d)(3). As part of his plea agreement, he signed an appellate waiver, which states in relevant part that he “waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless . . . the sentence exceeds the maximum penalty provided in the statute of conviction.” Before sentencing, the district court proposed conditions of supervised release, including Special Condition Nine, which would prohibit him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy. Mr. Holzer objected to the proposed special condition on several grounds, including that it infringed on his First Amendment Rights. The district court overruled the objection, sentencing him to 235 months imprisonment, to be followed by 15 months of supervised release, including Special Condition Nine. On Appeal, Holzer argued that that Special Condition Nine infringes on his First Amendment rights and was not supported by particularized findings of the district court. Mr. Hozier further argued that the appellate waiver is unenforceable because the special condition exceeds the maximum penalty provided in the statute of conviction, thus qualifying for one of the exceptions to the applicability of the appellate waiver included in the waiver itself. The court applied the test set forth in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) for determining the enforceability of appellate waivers: (1) whether the disputed appeal falls within the scope 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. Mr. Holzer argued that the appeal fell outside the scope of the appeal waiver because the waiver itself carved out an exception for its application to sentences beyond “the maximum penalty provided in the statute of conviction,” and the requirement set forth by Special Condition Nine is not contemplated by § 3583, which authorizes the imposition of supervised release. In determining what the “the maximum penalty provided in the statute of conviction” means, the court first evaluated whether the “statutes of conviction” are confined only to the statutes that he pleaded to ( §§ 247(a)(2), (d)(3) and 844(i)), and thus do not pertain to the details of his supervised release term, or whether the “statutes of conviction” effectively incorporate penalty provisions set forth in § 3583. The court agreed with Mr. Holzer that the statutes of conviction included § 3583 because the plea agreement included reference to § 3583. The court next considered whether the term “maximum” could apply to the terms of Special Condition Nine, or whether it only relates to the specific quantity of time prescribed. Relying on common definitions of the word “maximum,” which describe it in terms of magnitude and quantity, the fact that the plea agreement referenced numerical quantities, and case law supporting the conclusion that “maximum penalty” denotes a specific quantity of time, the court concluded that the “maximum penalty provided in the statute of conviction” could not pertain to Special Condition Nine. Thus, the appellate waiver’s exception for sentences beyond the maximum penalty provided in the statute of conviction does not apply to a challenge to Special Condition Nine because it does not set forth a quantifiable term. For the same reason, the court held that the sentence could not exceed the statutory maximum under Hahn’s miscarriage-of-justice exception to enforcing appellate waivers.

Panel rejects invited-error doctrine; refused to shield a sentence-in-advance

United States v. Moore, 2022 WL 1087336 (10th Cir., April 12, 2022) (KS): At sentencing, Moore requested a sentence of time served and three years supervised release. The government asked for a 51 month prison term. The district court offered Moore a choice, 48 months of probation, subject to at least 84 months of imprisonment if he violated any terms of his probation or 51 months imprisonment immediately. Moore chose the former. Ten months after the sentence was imposed Moore violated travel and housing conditions of his probation. These were grade C violations with a recommended imprisonment range of 5-11 months. The district court instead imposed a prison term of 84 months. On appeal Moore argued that sentence was procedurally and substantively unreasonable. The panel agreed. The panel rejected the government’s suggestion that Moore had invited the error. It said that doing so would “shield from our review even a sentence-in-advance sentence all the way up to the statutory maximum.” It wasn’t willing to let that happen. The panel then reviewed Moore’s challenge to the court’s sentencing procedure for plain error. It held Moore proved the district court’s “sentence-in-advance system” satisfied all four prongs of the plain error test. According to Supreme Court and circuit precedent, a district court is supposed to start with the facts, calculate the advisory guideline range and then decide whether a variance is warranted to ensure a just sentence. The court here plainly erred because it set a minimum future sentence without engaging in an analysis that becomes pertinent only after probation is revoked. In other words, the court could not have known when it sentenced Moore originally whether his future conduct categorically would justify at least a 33 month consecutive prison term to its offered 51 month sentence. Consequently, its sentencing procedure was unreasonable. After this, the opinion is confounding and fraught. The panel, in essence described the procedure that should be followed when a court revokes probation. First it analyzed 18 U.S.C. § 3565(a)(1-2). If a court decides that an individual has violated a term of probation, it then, with the 18 U.S.C. § 3553(a)’s factors in mind, must choose between (1) continuing the person on probation with or without modifying conditions or (2) revoking probation and re-sentencing the person. Because the court here revoked Moore’s probation, it was required by § 3565(a)(2) to “resentence” Moore. That meant reevaluating the case as it stood when the court imposed probation. According to § 3553(a)(4)(A), the court had to look at the probation officer’s recommendation, the parties’ objections, the § 3553(a) factors, including the person’s history, characteristics and pre-probation sentencing conduct. This is necessary, the panel said, because the Guidelines in Chapter Seven tell the court if it revokes probation it may “impose any other sentence that initially could have been imposed.” (emphasis in original). The panel then stepped back to the district court’s analysis at the initial sentencing. There the court said a 51 month imprisonment term was appropriate and thus it was one that “could initially have been imposed.” Next, the panel reviewed the policy statements in the Guidelines’ Chapter 7, which it said the district court “must apply.” The district court also must consider “the § 7B1.4 sentencing grid for the probation violation – not the sentence guidelines for the underlying offense.” (emphasis in original). The panel claims that this necessary “two-step” approach to sentencing when probation is revoked is derived from United States v. Kelley, 359 F.3d 1302, 1306 (10th Cir. 2004). But Kelly rejected this approach. There, relying on a Ninth Circuit decision the accused said the district court must consider the guideline range applicable to his underlying offense before the court sentenced him after ordering his supervised release revoked. The Kelly panel said § 3553(a)(4)(A) has no application in a supervised release revocation hearing, instead, the relevant sentencing analysis is girded by the Chapter 7 policy statements referenced in § 3553(a)(4)(B). It noted that the congressional record supported its decision: In § 3553(a)(4)(B), “Congress clearly intended that these guidelines or policy statements rather than those applicable at sentencing, be used by courts when sanctioning probation (or supervised release) violators.” You might be thinking, so what’s the hub-bub, bub? Well, if the court can go back to the original sentencing and the imprisonment range which it forwent in exchange for probation (or a much lower prison term), then arguably it can use that “sentence that initially could have been imposed” to justify a variance well above the recommended imprisonment range from Chapter 7. Moore seems to invite such a procedure. The panel explained that the district court plainly erred because it didn’t explain why an 84 month prison term was appropriate under § 3553(a) and Chapter 7. Its questions at the end of the opinion offer an outline by which the district court can make that prison term procedurally and substantively reasonable. Judge Bacharach dissented. In his opinion Moore invited the sentencing terms imposed to avoid prison. Moore knew the risks because the district court emphasized them repeatedly. And so did his attorney. Because Moore agreed each time to the sentencing terms, he knowingly invited any potential error which vitiated any challenge on appeal. For these same reasons, the sentencing procedure did not seriously affect the fairness or public reputation of the proceedings.

United States v. Leal, No. 21-2003, __F. 4th __, 2022 WL 1028985 (10th Cir. Apr. 25, 2022) (affirming a conviction and sentence for conspiracy to distribute at least 50 grams of meth) Mr. Leal was convicted of conspiracy to distribute at least 50 grams of meth under §§ 841(b)(1)(B) and 846 after putting a confidential informant in touch with a codefendant who then put the informant in touch with yet another codefendant who was actually selling drugs. Leal challenged the conviction and sentence on three grounds: (1) there was insufficient evidence to prove his participation in the conspiracy and his knowledge of the drug type and quantity; (2) the government acted outrageously in its investigation; (3) he received a substantively unreasonable sentence. The court rejected all three arguments. 1. First, Mr. Leal argued that the government failed to prove that he “had knowledge of the essential object of the conspiracy,” and, more specifically, that he knew the drug type and the quantity, because his connection to the sale was so attenuated. The Tenth Circuit held that the evidence was sufficient to convict Mr. Leal, even though he only passed the CI on to other contacts and only spoke explicitly about marijuana, because he “participated twice in a series of calls connecting the informant to the person who ultimately sold the methamphetamine” and there were some allusions to meth and the relevant quantities in one of the conversations. [1] 2. Second, Mr. Leal argued that the government acted outrageously in targeting him because he was a “recently released addict with severe cognitive difficulties” and the government informant was highly paid.[2] The Tenth Circuit held, under plain error review, that there was no outrageous conduct by the government here because there was no evidence that the government engineered the purchase; Mr. Leal could not show that the government knowingly took advantage of his vulnerability; and the amount the CI was paid ($125,000!) was not outrageous, given that he received payments over the course of 7 years and payment was not contingent on results. 3. Finally, Mr. Leal argued that the sentence was substantively unreasonable because it was excessive compared to his codefendants (sentenced to 4 and 5 years after accepting plea agreements, compared to his 30 years) and failed to account for his mental conditions. The court (what a surprise!) rejected these arguments, noting that his sentence was more significant due to his status as a career offender, the fact that his codefendants got downward adjustments for acceptance of responsibility, and the voluntary dismissal of some of the codefendants’ charges. The court also noted that disparity is not measured by comparison to codefendants, but by looking at national averages. The court found that the district court considered Mr. Leal’s mental conditions adequately because it acknowledged them. [1]The opinion contains some very involved graphics with various symbols and “legends,” including a very special image of some “crystals,” to demonstrate the connection between Mr. Leal and the sale, which might suggest to reasonable minds that this connection was in fact rather attenuated. 2 These highly relevant facts, which reasonable minds might expect the panel to feature at the forefront of the opinion, are in fact buried deep in the discussion.