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    United States v. Jackson, 10th Cir. (2003)

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    - Donald Jackson pleaded guilty to one count of possession of a firearm by a prohibited person in exchange for dismissal of drug possession charges. He received a 42 month sentence. - Jackson appealed, arguing the district court erred in applying a sentencing enhancement. However, Jackson had signed a plea agreement waiving his right to appeal his sentence. - The appellate court dismissed the appeal for lack of jurisdiction, holding that Jackson's waiver of his right to appeal was knowing and voluntary and therefore enforceable. One judge wrote separately to clarify that appellate waivers do not actually strip courts of subject matter jurisdiction.

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    United States v. Jackson, 10th Cir. (2003)

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    - Donald Jackson pleaded guilty to one count of possession of a firearm by a prohibited person in exchange for dismissal of drug possession charges. He received a 42 month sentence. - Jackson appealed, arguing the district court erred in applying a sentencing enhancement. However, Jackson had signed a plea agreement waiving his right to appeal his sentence. - The appellate court dismissed the appeal for lack of jurisdiction, holding that Jackson's waiver of his right to appeal was knowing and voluntary and therefore enforceable. One judge wrote separately to clarify that appellate waivers do not actually strip courts of subject matter jurisdiction.

    Original Description:

    Filed: 2003-04-02 Precedential Status: Non-Precedential Docket: 02-3104

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    - Donald Jackson pleaded guilty to one count of possession of a firearm by a prohibited person in exchange for dismissal of drug possession charges. He received a 42 month sentence. - Jackson appealed, arguing the district court erred in applying a sentencing enhancement. However, Jackson had signed a plea agreement waiving his right to appeal his sentence. - The appellate court dismissed the appeal for lack of jurisdiction, holding that Jackson's waiver of his right to appeal was knowing and voluntary and therefore enforceable. One judge wrote separately to clarify that appellate waivers do not actually strip courts of subject matter jurisdiction.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    24 views8 pages

    United States v. Jackson, 10th Cir. (2003)

    Uploaded by

    Scribd Government Docs
    - Donald Jackson pleaded guilty to one count of possession of a firearm by a prohibited person in exchange for dismissal of drug possession charges. He received a 42 month sentence. - Jackson appealed, arguing the district court erred in applying a sentencing enhancement. However, Jackson had signed a plea agreement waiving his right to appeal his sentence. - The appellate court dismissed the appeal for lack of jurisdiction, holding that Jackson's waiver of his right to appeal was knowing and voluntary and therefore enforceable. One judge wrote separately to clarify that appellate waivers do not actually strip courts of subject matter jurisdiction.

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    of 8

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    APR 2 2003

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    No. 02-3104
    (D.C. No. 01-CR-10070-MLB)
    (D. Kan.)

    v.
    DONALD L. JACKSON,
    Defendant-Appellant.

    ORDER AND JUDGMENT

    Before HENRY , BARRETT , and MURPHY , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    Donald L. Jackson appeals from a judgment and sentence entered upon
    his guilty plea to one count of possession of a firearm by a prohibited person.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    18 U.S.C. 922(g)(1). In exchange for his guilty plea, charges of unlawful


    possession of cocaine and unlawful possession of marijuana against Mr. Jackson
    were dismissed. He received a sentence of incarceration for forty-two months.
    On appeal, he contends that the district court erred in applying an enhancement
    for felony possession of cocaine in connection with the offense.

    See USSG

    2K2.1(b)(5).
    Mr. Jackson signed a plea agreement in connection with his guilty plea.
    Paragraph three of this plea agreement reads as follows:
    The defendant agrees, in consideration of [a recommendation by the
    government for a reduction for acceptance of responsibility and
    dismissal of the two drug possession charges], that he is aware that
    Title 28, United States Code, Section 2255 affords a defendant the
    ability to challenge his conviction. Acknowledging all this, the
    defendant knowingly waives his right to file an appeal and/or to
    challenge his plea, sentence or the manner in which the sentence was
    determined in any collateral attack, including but not limited to
    a motion brought under Title 28, United States Code, Section 2255,
    in exchange for the concessions made by the United States in this
    plea agreement.
    R. Vol. I, Doc. 33 at 2 (emphasis added).
    The government has not raised this waiver as a bar to our consideration
    of Mr. Jacksons appeal. Nevertheless, if the waiver is effective, we would
    certainly overreach our jurisdiction to entertain this appeal when the plea
    agreement deprived Defendant of the right to appeal.

    United States v. Rubio ,

    231 F.3d 709, 711 (10th Cir. 2000). Moreover, [w]e cannot ignore the
    -2-

    jurisdictional issue because we have an independent obligation to examine our


    subject matter jurisdiction.

    Id. at 711 n.1.

    We previously issued an order to show cause why this appeal should not be
    dismissed for lack of subject matter jurisdiction. Mr. Jackson responded as
    follows: (1) the government waived its right to enforce the waiver provision;
    (2) this court should not raise the waiver

    sua sponte ; (3) this court is not a party

    to the plea agreement and has no independent authority to enforce it; (4) dismissal
    of the appeal for lack of jurisdiction after appointment of counsel wastes judicial
    resources; (5) appointed counsel was barred by ethical obligations from raising
    the waiver; and (6) the government obtained the waiver by deception. In view of
    the jurisdictional nature of the waiver of right to appeal, the first five arguments
    clearly lack merit. We will consider only the last argument: whether the waiver
    should not be enforced because it was obtained by deception.
    A defendants knowing and voluntary waiver of his right to appeal is
    enforceable. United States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000).
    Mr. Jackson contends that his waiver was not knowing and voluntary because
    the government failed to inform him of its intention to seek a 2K2.1(b)(5)
    enhancement at sentencing. He does not advance facts sufficient to show that the
    government actively misled him; only that he reasonably assumed that the
    dismissed drug offenses would not be used to enhance his sentence. Nor does he
    -3-

    challenge the statement in his plea agreement that the United States has made no
    promises or representations to this defendant or his attorney regarding what
    sentence might be imposed or which sentencing guideline level will be
    appropriate. R. Vol. I, Doc. 33 at 2.
    Mr. Jackson also fails to allege any public policy grounds for voiding his
    waiver of right to appeal.

    See, e.g., Black , 201 F.3d at 1301. Although he

    complains that he was deceived into entering his plea, he does not seek to
    withdraw his plea on this basis; instead, he asks us to discard the waiver provision
    and, without disturbing the other benefits of the plea accruing to him, to reach
    issues otherwise barred on appeal.
    Mr. Jacksons arguments are insufficient to show that the plea, including
    the appellate waiver, was not knowing and voluntarily entered.

    See United States

    v. Cockerham , 237 F.3d 1179, 1181 (10th Cir. 2001) (stating knowing and
    voluntary standard). This appeal is therefore DISMISSED for lack of subject
    matter jurisdiction.
    Entered for the Court

    Michael R. Murphy
    Circuit Judge

    -4-

    HENRY, J., specially concurring.


    I agree with the majority that Jacksons waiver of his right to appeal should
    be enforced in this case. I am concerned, however, with the majoritys holding
    that the waiver deprives us of subject matter jurisdiction. Although that phrase
    was used somewhat loosely in a footnote in United States v. Rubio, 231 F.3d 709,
    711 n.1 (10th Cir. 2000), I do not believe that appellate waivers actually strip this
    court of its basic subject matter jurisdiction over direct appeals, which is
    conferred by Congress. See 18 U.S.C. 3742(a)(2).
    A valid waiver operates as a contractual limitation on the right to appeal.
    See, e.g., United States v. Hernandez, 134 F.3d 1435, 1436-38 (10th Cir. 1998).
    The decision to enforce the waiver is subject to a number of public policy
    considerations. United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000).
    We will not enforce the waiver, for example, where the sentence is tainted by
    racial bias, where the sentence exceeds the statutory maximum, or where the
    agreement was entered into without effective assistance of counsel. Id. Invoking
    subject matter jurisdiction undercuts the public policy rationale, founded on
    contract theory, that undergirds these exceptions.
    A holding that we must apply the waiver in every case, whether or not
    raised by the Government, is inconsistent with precedent in most other circuits.
    These circuits have held that the waiver may itself be waived, by the
    Governments failure to raise it.

    See, e.g., United States v. Doe

    , 239 F.3d 473,

    474-75 (2d Cir. 2001) (applying appellate waiver rule to governments failure to
    raise defendants waiver of right to appeal contained in plea agreement);

    United

    States v. Nunez , 223 F.3d 956, 958 (9th Cir. 2000) (stating government may lose
    right to assert waiver defense by failing to raise it, but holding government did
    raise plea waiver in that case).

    See also United States v. Rhodes

    , 253 F.3d 800,

    804 (5th Cir. 2001) ([I]n the absence of published authority dictating otherwise,
    we will not enforce such a waiver when the government explicitly states that it
    chooses not to rely on [the defendants] waiver of appeal.).

    Cf. also Hunter v.

    United States , 160 F.3d 1109, 1113-14 (6th Cir. 1998) (stating government
    waived right to raise defendants waiver of right to bring 2255 motion by failing
    to raise waiver in district court);

    United States v. Schmidt , 47 F.3d 188, 190, 192

    (7th Cir. 1995) (stating that although government did not rely on waiver contained
    in plea, court had discretion to affirm on basis of waiver, or, alternatively, to
    determine merits of appeal).
    Significantly, two of these circuits, the Seventh and Ninth, have referred to
    the waiver as jurisdictional, just as we have.
    F.3d 719, 720-21 (7th Cir. 2002);

    See United States v. Nave , 302

    Vences , 169 F.3d at 613. The fact that they

    permit a waiver of this jurisdictional defense based on the governments failure


    to raise it suggests that jurisdiction is being used in a sense to mean something
    less or other than subject matter jurisdiction. It is a truism that not every
    -2-

    jurisdictional issue actually involves a courts subject matter jurisdiction.


    15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

    See

    Federal

    Practice & Procedure , 3903, at 143 (2d ed. 1992) (noting the notorious variety
    of concepts that can be classified within the realms of jurisdiction);

    see also

    United States v. Prentiss , 256 F.3d 971, 982 (10th Cir. 2001) (en banc)
    (concluding that the Governments failure to allege the Indian/non-Indian
    statuses of Defendant and his victim in the indictment did not deprive the district
    court of subject matter jurisdiction to hear the case, although Defendant
    ultimately may be entitled to dismissal of the indictment).
    In short, I do not believe the

    Rubio court intended to establish a rule that

    strips us of subject matter jurisdiction whenever a waiver has been signed,


    without consideration of the particular facts and circumstances of the case. The
    pertinent inquiry should be whether enforcement of the waiver, which is a
    contractual matter, offends public policy.
    Although the Government did not raise the waiver in this case, I agree with
    the majority that it should be enforced. The Governments failure to raise the
    waiver, standing alone, does not typically rise to the level of a public policy
    concern that vitiates the bargained-for waiver. Nor do I find the arguments
    asserted in appellants response to our motion to show cause persuasive. To
    invoke subject matter jurisdiction as the basis for enforcement of the waiver,
    -3-

    however, is inconsistent with the concept that subject matter jurisdiction is


    conferred by Congress and not the parties. I would decide this case by
    enforcement of the waiver, without reference to subject matter jurisdiction.

    -4-

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