United States of America v. Ricky Huntley

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY HUNTLEY,
Defendant - Appellant.
No. 21-1332
(D.C. No. 1:19-CR-00461-CMA-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Ricky Huntley appeals from his sentence despite the appeal waiver in his plea
agreement. The government now moves to enforce that waiver under United States v.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Through
counsel, Huntley responds that the appeal waiver does not encompass the argument
he intends to make on appeal and the waiver otherwise should not be enforced. For
the reasons explained below, we grant the government’s motion.
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 7, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 1

-- 1 of 9 --

2
I. BACKGROUND & PROCEDURAL HISTORY
Huntley is a federal prisoner who was caught with a cell phone. The Bureau of
Prisons (BOP) administratively punished him with “90 days[’] loss of visitation
privileges, 90 days[’] loss of commissary privileges, and 41 days[’] disallow good
conduct time.” Resp. to Gov’t Mot. to Enforce an Appeal Waiver (“Response”) at 2
(internal quotation marks omitted).
Soon after, a grand jury indicted Huntley based on the same conduct. More
specifically, it charged him with one misdemeanor count of possessing a prohibited
object in prison.
Huntley chose to plead guilty and signed a plea agreement to that effect. The
plea agreement contains the following appeal waiver:
Defendant knowingly and voluntarily waives the right to
appeal any matter in connection with this prosecution,
conviction, or sentence unless it meets one of the
following criteria: (1) the sentence exceeds the maximum
penalty provided in the statute of conviction; (2) the
sentence exceeds the advisory guideline range that applies
to a total offense level of 4; or (3) the Government appeals
the sentence imposed.
Mot. to Enforce an Appeal Waiver (“Motion”), Attach. 1 (“Plea Agreement”) ¶ 9.
At the change-of-plea hearing, the district court began its colloquy by asking
Huntley if he would waive his right to remain silent so he could answer the court’s
questions. Huntley said yes and immediately began explaining that he had already
been through the BOP’s administrative punishment process. Referring to the Double
Jeopardy Clause, he asked, “[I]s this considered as a double sentence[?]” Motion,
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 2

-- 2 of 9 --

3
Attach. 2 (“Change-of-Plea Tr.”) at 7. Huntley said he had already asked his attorney
and she “explained it to me the best way she can . . . but I still wonder—I had told
myself I was going to ask the judge myself whenever I get a chance.” Id.
The district court offered its view that administrative and judicial proceedings
regarding the same conduct do not raise a Double Jeopardy question. But the court
ultimately referred Huntley to his attorney, stating, “That is not something I can give
you any advice on.” Id. at 8. Huntley responded, “All right.” Id. The court also
told Huntley he could ask to speak privately with his attorney at any time. From
there, the court proceeded with the hearing.
As part of the plea colloquy, the court asked, “Do you understand that by
entering into this plea agreement, you are giving up your right to appeal or otherwise
challenge your prosecution, conviction, and sentence under the circumstances
outlined in your plea agreement?” Id. at 19. Huntley answered, “Yes, ma’am.” Id.
After confirming Huntley’s understanding of other rights he would be waiving, the
court asked, “Do you need any more time to talk to [your attorney] about these rights
or your waiver of these rights?” Huntley answered, “No, ma’am.” Id. at 20.
Finally, at sentencing, the parties agreed that the advisory guidelines range
was two to eight months’ imprisonment, and the district court imposed a four-month
sentence. As required by the relevant statute, the district court ordered that this
sentence run consecutively to the sentence Huntley has been serving. See 18 U.S.C.
§ 1791(c).
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 3

-- 3 of 9 --

4
II. ANALYSIS
Huntley intends to argue on appeal that his sentence violates the Double
Jeopardy Clause because the BOP had already punished him for the same conduct.
Huntley recognizes that our precedent is to the contrary. See Response at 4 n.2
(citing Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994) (“Prison disciplinary
hearings are not part of a criminal prosecution, and therefore do not implicate double
jeopardy concerns.” (citations omitted))). But he further intends to argue that a later
Supreme Court decision abrogated that precedent.
A. Scope of the Waiver
Our first question when faced with a motion to enforce an appeal waiver is
whether the defendant’s appeal argument “falls within the scope of the waiver.”
Hahn, 359 F.3d at 1325. Huntley claims his Double Jeopardy argument falls outside
the scope of the waiver given the exception for a “sentence [that] exceeds the
maximum penalty provided in the statute of conviction.” Plea Agreement ¶ 9. He
reaches this position as follows:
1. a sentence that exceeds the statutory maximum is an illegal sentence—
therefore, the appeal waiver contains an exception for any form of
illegal sentences; and
2. a sentence in violation of the Double Jeopardy Clause is one form of
illegal sentence—therefore, a Double Jeopardy argument falls outside
the appeal waiver.
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 4

-- 4 of 9 --

5
The argument fails at the first premise. Huntley offers no authority for the notion
that an exception for one type of illegal sentence necessarily implies an exception for
every type of illegal sentence.
Also, contrary to Huntley’s argument, see Response at [6], 1 this is not a
question of construing appeal waivers strictly against the government and construing
ambiguities in the defendant’s favor. The appeal waiver and the exception on which
Huntley relies—“the sentence exceeds the maximum penalty provided in the statute
of conviction,” Plea Agreement ¶ 9—are not ambiguous.
Thus, Huntley’s Double Jeopardy claim does not fit within any exception to
the appeal waiver, so it “falls within the scope of the waiver,” Hahn, 359 F.3d at
1325.
B. Knowing and Voluntary Waiver
We next ask “whether the defendant knowingly and voluntarily waived his
appellate rights.” Id. Here, the plea agreement states as much, see Plea Agreement
¶ 9, and the district court confirmed as much during the plea colloquy, see Change-
of-Plea Tr. at 19. Huntley argues, however, that the “colloquy in this case [did]
nothing to demonstrate that [he] was ever informed, let alone knowingly agreed, that
he was waiving the right to challenge the legality of his sentence.” Response at 8.
But Huntley responded affirmatively when the district court asked, “Do you
understand that . . . you are giving up your right to appeal or otherwise challenge
1 The sixth page of the Response does not have a page number.
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 5

-- 5 of 9 --

6
your prosecution, conviction, and sentence under the circumstances outlined in your
plea agreement?” Change-of-Plea Tr. at 19. Huntley also told the district court that
he did not need more time to discuss anything with his attorney. The record thus
shows that Huntley knowingly and voluntarily waived his right to appeal.
C. Miscarriage of Justice
Last, we ask “whether enforcing the waiver would result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325. A miscarriage of justice occurs “[1] where the
district court relied on an impermissible factor such as race, [2] where ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where
the waiver is otherwise unlawful.” Id. at 1327 (bracketed numerals in original;
internal quotation marks omitted).
Huntley does not identify which of these four options applies here. He instead
falls back on the argument that he received an illegal sentence and cites cases from
this court excusing an appeal waiver in the context of sentences imposed beyond
statutory maximums. See United States v. Hudson, 483 F.3d 707, 709–10 (10th Cir.
2007) (allowing defendant to appeal the legality of a restitution order that was
beyond the amount authorized by the restitution statute despite an appeal waiver);
United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007) (“[T]he language of
the plea agreement itself suggests Ms. Gordon did not intend to waive the right to
appeal any aspect of her sentence or restitution that was beyond that authorized by
the pertinent statutes.”); see also United States v. Cudjoe, 634 F.3d 1163, 1165–66
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 6

-- 6 of 9 --

7
(10th Cir. 2011) (stating that a term of supervised release beyond the statutory
maximum would be “an illegal sentence [and] outside the scope of an appeal waiver,”
but concluding that the defendant’s supervised release term was lawful). 2 Huntley
asserts that “barring [an illegal-sentence] claim would create a miscarriage of
justice.” Response at 9.
None of the cases Huntley cites holds that an illegal sentence is a per se
miscarriage of justice (i.e., a fifth form of miscarriage of justice, in addition to the
four established in Hahn). In Gordon, however, we stated in dicta that “Hahn
implies [a] rule” that “a defendant cannot waive the right to appeal an unlawful
sentence” because “an unlawful sentence . . . results in a miscarriage of justice.”
480 F.3d at 1209–10.
Regardless, Huntley’s illegal-sentence argument is materially different from
the illegal-sentence arguments presented in Hudson, Gordon, and Cudjoe. In each of
those cases, the defendant argued that the district court erred at the sentencing phase.
Our decision to permit those appeals ultimately traces back to the principle that
2 Huntley also cites United States v. Groves, 369 F.3d 1178 (10th Cir. 2004).
There, we permitted the defendant to bring an Ex Post Facto Clause challenge—
specifically, “use of a sentencing guideline that was not in effect at the time the
offense was committed”—because he specifically reserved the right to challenge an
“illegal sentence,” and a sentence imposed in violation of the Ex Post Facto Clause is
unconstitutional and therefore “illegal.” Id. at 1182 (internal quotation marks
omitted). Huntley did not similarly reserve the right to appeal any illegal sentence—
only a “sentence [that] exceeds the maximum penalty provided in the statute of
conviction,” Plea Agreement ¶ 9. Moreover, as we explain below, Huntley’s claim
that he received an illegal sentence is ultimately a claim that he should not have been
prosecuted, not that the court erred when it imposed his sentence.
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 7

-- 7 of 9 --

8
“a defendant who waives his right to appeal does not subject himself to being
sentenced entirely at the whim of the district court.” United States v. Black, 201 F.3d
1296, 1301 (10th Cir. 2000) (internal quotation marks omitted). There are, rather,
“public policy constraints” on appeal waivers, so defendants remain protected from
certain sentencing errors despite those waivers, such as receiving a sentence beyond
that statutory maximum. Id.
Huntley’s claim is nothing like this. He does not claim that the district court
erred at the sentencing phase, such as an error in the length or type of sentence
imposed. Nor does he argue that the BOP administrative tribunal and the district
court prosecution were a “single proceeding” through which he received two
sentences for the same conduct. See Jones v. Thomas, 491 U.S. 376, 381 (1989)
(noting that one purpose of the Double Jeopardy Clause is to “protect[] against
multiple punishments for the same offense imposed in a single proceeding” (internal
quotation marks omitted)). Though he phrases his argument in terms of an illegal
sentence, Huntley’s Double Jeopardy argument, if correct, is that the prosecution was
unconstitutional from the outset because the BOP had already punished him for
possessing the phone. See id. (noting that one purpose of the Double Jeopardy
Clause is to “protect . . . against a second prosecution for the same offense after
conviction”). Stated slightly differently, if Huntley’s sentence is illegal, it is only
because his prosecution was illegal—not because the district court committed an
error at sentencing.
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 8

-- 8 of 9 --

9
Unlike in the sentencing context, we have not imposed public policy
constraints on defendants’ ability to waive potential challenges to the prosecution.
Rather, “[a] criminal defendant may knowingly and voluntarily waive many of the
most fundamental protections afforded by the Constitution.” United States v.
Mezzanatto, 513 U.S. 196, 201 (1995). This includes the protections afforded by the
Double Jeopardy Clause. See id. (citing Ricketts v. Adamson, 483 U.S. 1, 10 (1987));
see also United States v. Broce, 488 U.S. 563, 572–74 (1989) (holding that
defendants’ guilty pleas encompassed a general waiver of pre-guilty-plea rights,
including any Double Jeopardy challenge, and counsel’s failure to inform defendants
about the possibility of bringing such a challenge was not a basis for setting aside
their pleas). Thus, even if Huntley has a valid Double Jeopardy argument (about
which we express no opinion), he fails to show that enforcing the waiver would be a
miscarriage of justice.
III. CONCLUSION
This appeal falls within Huntley’s appeal waiver, and no other Hahn factor
counsels against enforcement of the waiver. We grant the government’s motion to
enforce the appeal waiver and dismiss this appeal.
Entered for the Court
Per Curiam
Appellate Case: 21-1332 Document: 010110668210 Date Filed: 04/07/2022 Page: 9

-- 9 of 9 --