359 F.3d 1315 (10th Cir. 2004), 01-2301, United States v. Hahn

Docket Nº:01-2301.
Citation:359 F.3d 1315
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcus G. HAHN, Defendant-Appellant. National Association of Criminal Defense Lawyers, Amicus-Curiae.
Case Date:March 04, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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359 F.3d 1315 (10th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Marcus G. HAHN, Defendant-Appellant.

National Association of Criminal Defense Lawyers, Amicus-Curiae.

No. 01-2301.

United States Court of Appeals, Tenth Circuit

March 4, 2004

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[Copyrighted Material Omitted]

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David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the briefs), Office of the United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Kari Converse (Marc H. Robert, with her on the briefs), Albuquerque, NM, for Defendant-Appellant.

Norman R. Mueller, Rachel A. Bellis, Haddon, Morgan, Mueller, Jordan, Mackey and Foreman, P.C., Denver, CO; Daniel P. Blank, Assistant Federal Public Defender, San Francisco, CA, filed an amicus curiae brief for the National Association of Criminal Defense Lawyers.



Defendant-Appellant Marcus G. Hahn was convicted of marijuana and firearms violations and sentenced to forty years' imprisonment. In a second prosecution for sexual-exploitation offenses, Mr. Hahn entered into a plea agreement in which he waived the right to appeal his sentence. The district court, finding that it lacked discretion to issue the sexual-exploitation sentence concurrently with the marijuana-and-firearms sentence, sentenced Mr.

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Hahn to twenty-four years to be served consecutively with the marijuana-and-firearms sentence. Mr. Hahn filed this appeal, arguing that the district court had discretion to sentence him to concurrent sentences. We hold that we have subject matter jurisdiction to hear this appeal; and, because the plea agreement constitutes an enforceable waiver of appellate rights, we DISMISS.

The Per Curiam opinion delivers the opinion of this Court with respect to Parts I, II, III.A, and III.B. A majority of this Court concurs in dismissing Mr. Hahn's appeal. Part III.C of the Per Curiam opinion is an opinion concurring in the result.


We set this case for initial en banc review sua sponte to resolve an intra-Circuit split of authority concerning a matter of great public importance. See 28 U.S.C. § 46(c). The vast majority of federal criminal cases are resolved by plea agreements in which the defendant pleads guilty to some counts in exchange for concessions by the government. This system is an important tool in controlling the flood of criminal cases now inundating the federal courts. Many such plea agreements contain a waiver of the defendant's right to appeal the district court's sentence and the underlying conviction.

Given the importance of plea bargaining to the criminal justice system, we generally enforce plea agreements and their concomitant waivers of appellate rights. See, e.g., United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998) ("A defendant's knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable."). We do so, in large part, because public policy strongly supports such waivers as they benefit defendants, the government, and society at large. See United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001). Nevertheless, we consistently hold that "a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court." Id. at 1173 (quotation omitted).

These two competing goals--the need to enforce plea agreements and the need to subject sentencing decisions to review for miscarriages of justice1--arguably have led us to inconsistent conclusions. Cognizant of the need to enforce plea agreements, we have, on occasion, stated that we lack jurisdiction to hear appeals when a defendant has entered into a valid plea agreement containing a waiver of appellate rights. See, e.g., United States v. Rubio, 231 F.3d 709, 711 & n. 1 (10th Cir. 2000) (stating that this court "would certainly overreach [its] jurisdiction to entertain [an] appeal when the plea agreement deprived [the defendant] of the right to appeal"). In other instances, instead of conducting a jurisdictional analysis, we have enforced waivers of appellate rights pursuant to principles of contract law tempered by public policy concerns. See, e.g., United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000) ("[A]greements waiving the right to appeal, like other contracts, are [evaluated] subject to certain public policy constraints."). With these overarching tensions in mind, we turn to the issues in this case.


On December 31, 1999, law enforcement officers executed a search warrant at Mr. Hahn's home and found a sophisticated marijuana-growing operation and twenty-two loaded firearms. The officers also seized videotapes depicting Mr. Hahn sexually abusing young boys who appeared to be sedated, as well as a prescription for a

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"date rape" drug. Based on this evidence, the government charged Mr. Hahn in two separate federal cases, one involving the marijuana operation and related firearms possession and the other involving the sexual-exploitation offenses.

In the former prosecution, a jury found Mr. Hahn guilty of manufacturing marijuana in violation of 21 U.S.C. § 841, maintaining a place for the manufacture of marijuana in violation of 21 U.S.C. § 856, and two counts of possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c). United States v. Hahn, 38 Fed.Appx. 553, 554 (10th Cir. 2002). Mr. Hahn received concurrent sentences totaling five years for the two substantive marijuana offenses, a ten-year sentence for the first firearm conviction, and a twenty-five-year sentence for the second firearm conviction. The district court imposed the two firearms-related sentences consecutively to each other and to the five-year total sentence for the substantive marijuana convictions. Thus, in the marijuana-and-firearms case, Mr. Hahn received a total of forty years' imprisonment, or 480 months, a sentence that this court affirmed on appeal. Id.

In the sexual-exploitation case, a grand jury indicted Mr. Hahn on seventeen counts relating to sexual exploitation and child pornography. He pleaded guilty to four counts of sexual exploitation of a minor in violation of 18 U.S.C. § 2251 and two counts of distributing a controlled substance to an individual with intent to commit a crime of violence in violation of 21 U.S.C. §§ 841(a)(1) and (b)(7). He also pleaded no contest to another count of distributing a controlled substance to an individual with intent to a commit a crime of violence. As part of the plea agreement, the government agreed to dismiss the remaining counts in exchange for Mr. Hahn's waiver of his right to appeal the sentence imposed, "except to the extent ... that the Court may depart upwards from the applicable sentencing guideline range as determined by the Court."2 The district court imposed concurrent sentences of 240 months for each of the counts to which Mr. Hahn pleaded guilty. On the count to which Mr. Hahn pleaded no contest, the court imposed a fifty-two-month sentence to run consecutively to the other terms. Thus, Mr. Hahn received a total sentence of 292 months' incarceration in the sexual-exploitation case.

Moreover, the district court ordered that Mr. Hahn serve the 292-month sentence consecutively to the 480-month sentence previously imposed in the marijuana-and-firearms case, resulting in a total prison sentence of over sixty-four years. Over Mr. Hahn's objections, the district court

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concluded that, under 18 U.S.C. § 924(c), it had "no alternative but to" impose the sentence consecutively.

On appeal, Mr. Hahn argues that the district court wrongly concluded that it lacked discretion to impose a concurrent, rather than a consecutive, sentence. He maintains that, had the district court correctly understood its authority to impose a concurrent sentence, it would have exercised that discretion to impose a sentence twenty-four years shorter than he received.


We face three issues on appeal. First, assuming that Mr. Hahn validly waived his right to appeal, do we have subject matter jurisdiction to hear this appeal? Second, if we have subject matter jurisdiction, what appellate waiver enforcement analysis should we undertake? Third, with the appropriate analysis at hand, how do we resolve this appeal? We address these issues in turn.

A. Subject Matter Jurisdiction

The parties agree, and we concur, that if Mr. Hahn's appellate waiver is unenforceable, we would have subject matter jurisdiction. The parties, however, disagree about the effect an enforceable appellate waiver has on our subject matter jurisdiction. The government asserts that a valid waiver of appellate rights deprives this Court of both statutory and constitutional subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (describing subject matter jurisdiction as "the courts' statutory or constitutional power to adjudicate the case"). Assuming for purposes of this jurisdictional discussion that the appellate waiver is enforceable, we disagree with the government and hold that we have subject matter jurisdiction to hear this appeal.

1. Statutory Subject Matter Jurisdiction

We read Mr. Hahn's briefs to argue that the district court's failure to consider a concurrent sentence constitutes a sentence imposed in violation of law. The government, therefore, contends that we lack statutory subject matter jurisdiction over this appeal because it could only arise under 18 U.S.C. § 3742(a)(1), which in the government's view does not apply in this case because the sentence was not imposed in violation of law. See 18 U.S.C. § 3742(a)(1) ("A defendant may file a...

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