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This matter was before a 10th Circuit Court of Appeals panel out of Wichita, Kansas, on the government’s motion to enforce the appeal waiver in Nancy Martin’s plea agreement pursuant to the 10th Circuit Court of Appeals decision United States v. Hahn.
Martin pleaded guilty to bank fraud and aiding or assisting in filing a false tax document. In exchange for her plea, the government agreed to recommend she receive a two-level reduction in the applicable offense level for acceptance of responsibility and to move for an additional one-level reduction “if her offense level is 16 or greater, prior to any reduction for acceptance of responsibility, and the Court finds she qualifies for a two-level reduction.”
The plea agreement included a broad waiver of Martin’s appellate rights, including the right to appeal “any matter in connection with . . . her conviction, or the components of [her] sentence…, including restitution,” unless either the court departed upwards from the applicable guidelines range or the government appealed the sentence. Both by signing the written agreement and in her responses to the court’s questions at the change of plea hearing, Martin confirmed she understood the consequences of her plea, including the appeal waiver and acknowledged her plea was knowing and voluntary.
The court determined Martin’s offense level was 26 and the applicable guidelines range was 63 to 78 months. At the sentencing hearing, defense counsel noted Martin’s offense level “reflected [a] three-level reduction” for acceptance of responsibility — “the two that she [qualified for] plus the additional point that the Government has recommended.”
According to the 10th Circuit opinion, although the government had agreed to move at sentencing for the additional one-point reduction, it didn’t do so, presumably because the court had already granted the reduction. The district court then sentenced Martin to concurrent 48-month and 36-month prison terms, well below the bottom of the guidelines range, the 10th Circuit opinion explained. The court also imposed a period of supervised release and ordered Martin to pay restitution totaling almost $4 million.
Despite the appeal waiver, Martin filed a notice of appeal. Her docketing statement indicated she intended to argue “[there] is no factual basis for her conviction on either count,” and to challenge “[the] amount of loss and restitution figures.”
According to the 10th Circuit opinion, Martin claimed the appeal waiver was unenforceable because the government breached the plea agreement and because the Hahn requirements weren’t met.
Martin first asserted the government breached the plea agreement by not moving for the additional one-point reduction in her offense level at sentencing. According to the 10th Circuit opinion, she acknowledged she didn’t object in the district court. The 10th Circuit reviewed her argument for plain error. The plain-error test requires the defendant to demonstrate an error that is plain, affects her substantial rights, and, if those first three prongs are met, “the error seriously affects the fairness, integrity or public reputation of judicial proceedings,” the opinion noted, citing the U.S. Supreme Court decision United States v. Olano. To establish the third plain-error prong in a breach-of-plea-agreement case, the defendant must show the error had a prejudicial effect on the sentence imposed, the 10th Circuit noted.
The 10th Circuit explained Martin attempted to avoid the outcome of this plain-error analysis by arguing her contention wasn’t that the alleged breach constituted error but it gave rise to an equitable defense to enforcement of the waiver grounded in “the general contract principle of first to breach.” She maintained “the Government—as the party who originally breached the plea agreement—cannot now rely on that same agreement.” According to the 10th Circuit opinion, to prevail on her unpreserved argument, the U.S. Supreme Court case Puckett v. United States requires her to show the alleged breach constituted an error that had a prejudicial effect on her sentence. She didn’t make that showing, the 10th Circuit explained.
Having rejected Martin’s contention her appeal waiver was unenforceable based on the government’s alleged breach, the 10th Circuit turned to the government’s motion to enforce. In ruling on the motion, it considered whether the appeal fell within the scope of the waiver, whether the waiver was knowing and voluntary, and whether enforcing it would result in a miscarriage of justice.
According to the 10th Circuit opinion, Martin first asserted “[her] waiver was involuntary because there was no factual basis for her plea.” She appeared to argue, the opinion noted, both her factual-basis issues fell outside the scope of the appeal waiver and the insufficient factual basis for her plea rendered her waiver involuntary. The 10th Circuit wasn’t persuaded by either argument.
Despite the 10th Circuit’s general rule and Martin’s appeal waiver, she urged the court to consider her claim on direct appeal because the counsel’s alleged ineffectiveness affected the voluntariness of her plea. The 10th Circuit declined to do so.
The 10th Circuit had “considered ineffective assistance of counsel claims on direct appeal in limited circumstances, but only where the issue was raised before and ruled upon by the district court and a sufficient factual record exists,” the opinion noted, citing the 10th Circuit Court of Appeals decision United States v. Flood. “[Even] if the record appears to need no further development, the claim [for ineffective assistance of counsel] should still be presented first to the district court in collateral proceedings…so the reviewing court can have the benefit of the district court’s views,” the opinion noted, citing the 10th Circuit Court of Appeals decision United States v. Galloway.
According to the 10th Circuit opinion, the circumstances here didn’t fall within the narrow exception to the 10th Circuit’s general rule because the district court didn’t have an opportunity to rule on Martin’s claim of ineffective assistance of counsel.
Because the Hahn factors weren’t met and the government’s failure to seek an additional offense-level reduction at the sentencing hearing didn’t constitute a breach of the plea agreement that precludes enforcement of the appeal waiver, the 10th Circuit granted the government’s motion to enforce and dismissed this appeal.