United States of America v. James Wayne Luce

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES WAYNE LUCE,
Defendant - Appellant.
No. 22-8047
(D.C. No. 1:21-CR-00013-ABJ-1)
(D. Wyo.)
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ORDER AND JUDGMENT*
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Before HARTZ, KELLY, and McHUGH, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver in James Wayne Luce’s plea agreement pursuant to United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Exercising jurisdiction
under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
Mr. Luce pleaded guilty to production of child pornography. Pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that a sentence of
no more than 240 months’ imprisonment would be appropriate. As part of his plea
agreement, Mr. Luce waived his right to appeal his conviction and sentence, unless
* This order and judgment is not binding precedent, except under the doctrines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
November 2, 2022
Christopher M. Wolpert
Clerk of Court
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the government appealed the sentence or the court sentenced him based on an upward
departure from or variance above the applicable guidelines range. 1 Mr. Luce
acknowledged in the plea agreement that he was entering his plea knowingly and
voluntarily and that he understood its consequences, including the sentences that
could be imposed and that he was waiving his appellate rights. At the change of plea
hearing, the district court reminded him of the possible sentences and broad appeal
waiver, and he confirmed that he understood and that he wanted to plead guilty.
Based on Mr. Luce’s responses to the court’s questions and its observations of his
demeanor during the hearing, the court accepted his plea as having been knowingly
and voluntarily entered.
The court then sentenced Mr. Luce to 240 months. The sentence is below the
guidelines range, is within the range the parties agreed was appropriate, and the
government did not appeal it. Despite the fact none of the exceptions to the appeal
waiver applied, Mr. Luce filed a notice of appeal.
In ruling on a motion to enforce, we consider whether the appeal falls within
the scope of the appeal waiver, whether the defendant knowingly and voluntarily
waived his right to appeal, and “whether enforcing the waiver would result in a
miscarriage of justice.” Hahn, 359 F.3d at 1325.
1 Mr. Luce also waived his right to collaterally attack his sentence, but he
reserved the right to raise a claim that he was prejudiced by ineffective assistance of
counsel or prosecutorial misconduct, subject to the requirements of 28 U.S.C. § 2255
or other applicable law. He also reserved the right to seek a sentencing reduction
under 18 U.S.C. § 3582(c).
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In response to the government’s motion to enforce, Mr. Luce, through counsel,
indicated that he “does not object to the enforcement of the waiver and dismissal of
his appeal.” Resp. to Mot. to Enforce at 1. By doing so, he conceded that his waiver
was knowing and voluntary, that his appeal falls within the scope of the waiver, and
that enforcement of the waiver would not result in a miscarriage of justice. See
United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (court need not address
uncontested Hahn factors).
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
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