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.