Professional Documents
Culture Documents
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
No. 04-2323
BRIAN SANDO VA L,
Defendant - Appellant.
In accordance with a plea agreement with the United States Attorney for the
District of New M exico, Brian Sandoval pleaded guilty to an information
charging him with theft and unauthorized conversion of two government vehicles,
see 18 U.S.C. 641. The district courts sentence included special conditions of
supervised release that restricted his contact with children. On appeal
M r. Sandoval challenges these conditions as unrelated to the crime for which he
pleaded guilty and as an unnecessary restriction on his liberty. In response the
government has filed a motion to enforce the provision of the plea agreement
waiving M r. Sandovals right to appeal. W e have jurisdiction under 28 U.S.C.
1291 and grant the governments motion.
I.
B AC KGR OU N D
On M ay 25, 2004, M r. Sandoval, a patient receiving medical and
D ISC USSIO N
M r. Sandoval contends on appeal that the supervised-release conditions
regarding contacts with children are invalid on two grounds: First, he argues that
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they do not deter him from engaging in criminal conduct similar to that for which
he was convicted. See 18 U.S.C. 3653(b)(5) (occupation restrictions must bear
a reasonably direct relationship to the conduct constituting the offense); United
States v. Erwin, 299 F.3d 1230, 123233 (10th Cir. 2002) (applying 18 U.S.C.
3563(b)(5)). Second, he argues that they unnecessarily deprive him of his
liberty. See 18 U.S.C. 3383(d)(2) (conditions of release should not restrict
liberty more than reasonably necessary). He also complains that he had no notice
of these special conditions before they were imposed. See United States v.
Bartsm a, 198 F.3d 1191, 11991200 (10th Cir. 1999) (defendant was entitled to
notice of special condition of release that was not facially related to charged
offense), overruled on other grounds by United States v. Atencio, No. 05-2279,
2007 W L 102977, at *9 (10th Cir. Jan. 17, 2007). W e need not resolve the merits
of these contentions, however, because he waived his right to appeal.
In United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc),
we held that a waiver of appeal is enforceable so long as (1) the disputed issue
falls within the scope of the waiver of appellate rights; (2) the defendant
knowingly and voluntarily waived his appellate rights; and (3) enforcing the
waiver does not result in a miscarriage of justice. The government contends that
M r. Sandovals appellate waiver satisfies all three conditions.
M r. Sandoval disagrees. He first asserts that the supervised-release
conditions do not fall within the scope of his waiver. W e narrowly construe the
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time and periods of supervised release); United States v. Andis, 333 F.3d 886,
892 n.7 (8th Cir. 2003) (similar); United States v. Sines, 303 F.3d 793, 798 (7th
Cir. 2002) (similar). M r. Sandoval has not contended either in his briefs or at
oral argument that his supervised-release conditions constitute a depart[ure]
upwards from the Sentencing Guidelines. See United States v. Blue Coat, 340
F.3d 539, 541 (8th Cir. 2003) (This waiver clearly limits M r. Blue C oats
appellate rights. The only appellate right he retained was the right to appeal a
departure up from the guideline range. Thus, his w aiver would prevent him
from appealing the conditions of his supervised release.). W e therefore hold that
the first Hahn requirement was satisfied.
M oving to the second Hahn requirement, we look primarily to two factors
in determining whether M r. Sandoval knowingly and voluntarily waived his
appellate rights: (1) whether the language of the plea agreement states that he
entered the agreement knowingly and voluntarily, and (2) w hether the record
reveals an adequate colloquy under Federal Rule of Criminal Procedure 11. See
Hahn, 359 F.3d at 1325. M r. Sandoval bears the burden to demonstrate that his
waiver w as not knowing and voluntary. See United States v. Edgar, 348 F.3d
867, 87273 (10th Cir. 2003) (defendant has the burden to present evidence from
the record establishing that he did not understand the w aiver).
M r. Sandoval has not come close to satisfying this burden. His agreement
explicitly states that he waived his appeal rights knowingly. R. Vol. I. Doc. 14
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IV .
C ON CLU SIO N
The governments motion to enforce the plea agreement is GRANTED and
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