August 15, 2018

Tenth Circuit: Knowing and Voluntary Waiver of Right to Appeal Enforced

The Tenth Circuit Court of Appeals published its opinion in United States v. Tanner on Friday, July 12, 2013.

Robert Clifton Tanner was charged with four counts of mail fraud. He entered into a plea agreement with the United States pursuant to F.R.Crim.P. 11(c)(1)(C) in which he agreed to plead guilty to one count of mail fraud for which he would receive a stipulated sentence of 30 months’ imprisonment. The district court accepted Tanner’s guilty plea and sentenced him to the agreed 30 months’ imprisonment. As part of his plea agreement, Tanner waived his right to appeal unless the punishment imposed was greater than the parties had agreed. Despite this waiver and the imposition of the agreed sentence, Tanner brought this appeal claiming his sentence was illegal.

In considering the totality of the circumstances, either the express language of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be enough to conclude the waiver was knowing and voluntary. Here, the plea agreement and the abbreviated Rule 11 colloquy, taken together, demonstrated Tanner’s waiver to have been knowingly and voluntarily made. The court found this to be so despite the trial court’s failure to specifically mention the appellate waiver in its Rule 11 colloquy.

The government’s motion to enforce the waiver was granted and the appeal was dismissed.

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