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This matter was before the 10th Circuit Court of Appeals on the government’s motion to enforce the appeal waiver in Alexis Wilkins’ plea agreement pursuant to United States v. Hahn. The 10th Circuit Court of Appeals granted the motion and dismissed the appeal.
Wilkins pleaded guilty to distributing a mixture or substance containing a detectable amount of fentanyl, a Schedule II controlled substance, resulting in death. As part of her plea agreement, she waived her right to appeal her conviction and sentence, unless the government appealed the sentence or the sentence imposed exceeded either the statutory maximum or the guidelines range for a total offense level of 35, the opinion noted.
The district court sentenced Wilkins to 240 months’ imprisonment. The sentence is below the statutory maximum of life imprisonment, the opinion noted, citing 21 U.S. Code 841(b)(1)(C), and is at the bottom of the guidelines range for her offense level. The government didn’t appeal the sentence. Although none of the exceptions to the appeal waiver applied, the opinion added, Wilkins filed a notice of appeal.
In ruling on a motion to enforce, the 10th Circuit considered whether the appeal fell within the scope of the appeal waiver, whether the defendant knowingly and voluntarily waived her right to appeal and “whether enforcing the waiver would result in a miscarriage of justice,” citing Hahn.
In response to the government’s motion to enforce, Wilkins, through counsel, indicated she didn’t object to the dismissal of her appeal pursuant to Hahn. By doing so, she conceded her waiver was knowing and voluntary, her appeal fell within the scope of the waiver and enforcement of the waiver wouldn’t result in a miscarriage of justice, the opinion noted, citing the decision United States v. Porter.
The 10th Circuit granted the government’s motion to enforce the appeal waiver and dismissed the appeal.
In this appeal, Jerrell Birch challenged the district court’s denial of his motion for a sentence reduction under 18 U.S.C. 3582. The 10th Circuit opinion said because the district court didn’t abuse its discretion in denying Birch’s request for sentence reduction, it affirmed the district court’s order.
Birch was charged with 23 counts in a multidefendant drug case. He pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute a quantity of a mixture and substance containing cocaine and/or 28 grams or more of cocaine base. The government agreed to dismiss the remaining counts against Birch. Based on the quantity of cocaine or cocaine base, Birch’s criminal history, his leadership role in the offense, and his acceptance of responsibility, the district court sentenced Birch to 96 months imprisonment, followed by four years supervised release — a downward departure from the U.S. Sentencing Commission Guidelines’ recommended sentencing range of 188 to 235 months imprisonment.
In April 2022, Birch filed a counseled motion requesting sentence reduction under 18 U.S.C. 3582 (c)(1)(A)(i). Under this provision, on a defendant’s motion, the district court may reduce the defendant’s sentence, once he has exhausted his administrative remedies if it finds such a reduction is warranted by “extraordinary and compelling reasons;” “consistent with applicable policy statements issued by the Sentencing Commission;” and supported by consideration of the relevant factors set forth in 3553(a), as applicable to the circumstances of the case, the opinion noted, citing the decision United States v. McGee. A district court may deny the defendant’s motion for sentence reduction “when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking,” citing United States v. Elias.
In moving for a reduction of his sentence, Birch argued extraordinary and compelling reasons warranted an immediate reduction of his sentence to time served. Specifically, Birch had been informed one of his children, J.B., had been abused by the child’s mother. J.B.’s mother had since surrendered custody, and J.B. was placed with Birch’s parents. According to the motion, Birch’s parents, who live separately, were sharing custody of J.B. and expressed their concern “that they can only care for [J.B.] in the very short term as they do not have the time or resources” to continue caring for J.B. Birch further argued the 3553(a) factors supported his requested sentence reduction.
The government opposed Birch’s motion, contending he hadn’t demonstrated extraordinary and compelling circumstances warranting sentence reduction and the 3553(a) factors weighed against granting Birch’s release. The government didn’t dispute the facts regarding Birch’s child but asserted the circumstances didn’t present “sufficient grounds for [Mr. Birch’s] release from custody.” The government also noted Birch had custody of J.B. “at the time of his arrest for the instant offense” and nonetheless “continued to engage in  drug trafficking conduct” at the risk of being taken away from his child. While acknowledging Birch’s parents’ challenges in caring for J.B., and the uncertainties about their future ability to do so, the government argued they provided stable residences for J.B. and, “it appear[ed] at present, the child’s needs [were] being met.”
The district court denied Birch’s motion for sentence reduction. In doing so, the court noted the issues with J.B.’s mother had been ongoing when Birch participated in the offense conduct underlying his conviction. While “sympathetic to the situation” involving J.B., who was “in a sense another victim of Mr. Birch’s and the child’s mother’s conduct,” the court found the instant circumstances weren’t “an extraordinary and compelling reason to reduce what was a very fair sentence.” Although “[b]eing temporarily in the care of Mr. Birch’s parents or foster care might not be ideal, . . . the child [wa]s nevertheless being cared for.”
Birch filed a notice of appeal of the district court’s order denying his sentence reduction.
After evaluation, the 10th Circuit found the district court didn’t abuse its discretion in denying Birch’s motion for sentence reduction and affirmed the court’s order.