* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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

January 15, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCUS G. HAHN,

Defendant-Appellant.

No. 06-2198

(D.C. Nos. CIV-05-608 JP/LFG and

CR-00-1344-JP)

(D. N.M.)

ORDER AND JUDGMENT*

Before HOLMES, HOLLOWAY, and SEYMOUR, Circuit Judges.

Marcus G. Hahn appeals from the district court’s denial of his motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We

granted a certificate of appealability (COA) on his claim that his guilty and nolo

contendere pleas to several sexual-exploitation offenses were involuntary, and we

now affirm. 
1 We affirmed the sentence on direct appeal and later affirmed the district

court’s dismissal of Mr. Hahn’s motion for § 2255 relief. Hahn, 38 F. App’x at

555; United States v. Hahn, 191 F. App’x 758, 759 (10th Cir. 2006), cert. denied,

127 S. Ct. 1897 (2007). 

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While executing a search warrant at Mr. Hahn’s home, law enforcement

officers found a marijuana-growing operation and loaded firearms. United States

v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004) (en banc) (per curiam). They also

found videotapes showing Mr. Hahn sexually abusing boys who appeared to be

sedated and a prescription for a “date rape” drug. Id. at 1318-19. “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.” Id. at 1319. The marijuana and

firearms case proceeded first. Mr. Hahn was convicted, after a jury trial, of

manufacturing marijuana, maintaining a place for the manufacture of marijuana,

and two counts of possessing a firearm in furtherance of drug trafficking in

violation of 18 U.S.C. § 924(c). United States v. Hahn, 38 F. App’x 553, 554

(10th Cir. 2002). He was sentenced to 480 months’ imprisonment. Hahn,

359 F.3d at 1319.1

 

In the sexual-exploitation case, the case at issue in this appeal, Mr. Hahn

pleaded guilty pursuant to a plea agreement to four counts of sexual exploitation

of a minor and two counts of distributing a controlled substance with intent to

commit a violent crime. He also pleaded nolo contendere to a third count of
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distributing a controlled substance with intent to commit a violent crime. The

district court imposed concurrent 240 month sentences for the six counts to which

Mr. Hahn pleaded guilty and a fifty-two month consecutive sentence for the count

to which he pleaded nolo contendere. Hahn, 359 F.3d at 1319. Also, the court

ordered that he serve this sentence consecutively to the sentence imposed in the

marijuana and firearms case. See 18 U.S.C. § 924(c)(1)(D) (“Notwithstanding

any other provision of law . . . no term of imprisonment imposed on a person

under this subsection shall run concurrently with any other term of imprisonment

imposed on the person . . . .”). We dismissed Mr. Hahn’s direct appeal after

holding that his plea agreement’s waiver of appellate rights was enforceable. 

Hahn, 359 F.3d at 1329-30. 

Thereafter, Mr. Hahn filed his § 2255 motion, asserting that the district

court violated his constitutional and Fed. R. Crim. P. 11 rights by failing to advise

him of the direct consequence of his pleas. He contended that his pleas were not

knowingly and voluntarily entered because the district court failed to inform him

prior to the entry of his pleas that imposition of a consecutive sentence was

required by § 924(c) and that the court lacked discretion to impose a concurrent

sentence. After adopting the magistrate judge’s report and recommendation, the

district court denied § 2255 relief. The court found that Mr. Hahn had been

informed of the maximum possible sentence and that he was aware that a

consecutive sentence could be ordered. In light of these findings and the holding
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in United States v. Carver, 160 F.3d 1266, 1268 (10th Cir. 1998), the court

determined that the court had no duty to inform Mr. Hahn of the possibility of a

consecutive sentence, even if a consecutive sentence was mandatory. See Aplt.

App., Vol. I at 265. 

Mr. Hahn continues to argue on appeal that he did not enter his pleas

knowingly and voluntarily with a full understanding of the direct consequences of

the pleas. Reviewing the district court’s legal rulings de novo and factual

findings for clear error, United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir.

2000), we conclude the district court correctly denied § 2255 relief. 

“A defendant’s guilty plea must be knowing, voluntary, and intelligent.”

United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002). For a knowing

and voluntary plea, a defendant must be “fully aware of the direct consequences”

of the plea. See Brady v. United States, 397 U.S. 742, 748, 755 (1970) (quotation

omitted). 

Carver, the case relied on by the district court, squarely addresses whether

a mandatory consecutive sentence is a direct consequence of a plea and holds it is

not. Carver, 160 F.3d at 1268. Mr. Carver was aware that he could receive a

consecutive sentence. Id. Based on that awareness, we held that the “district

court ha[d] no duty to inform [Mr. Carver] of the possibility of consecutive

sentences–even if mandated by the [Sentencing] Guidelines.” Id.; see id. n.1

(deciding that holding applied regardless of whether district court had discretion
2 Although Mr. Hahn continues to argue in his reply brief that his pleas were

involuntary because they were induced by ineffective assistance of counsel, we

did not grant a COA on that claim, and we DENY his request to expand the COA

to include this claim. 

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to impose consecutive sentence); see also Williams v. United States, 500 F.2d 42,

44 (10th Cir. 1974) (holding that defendant need not be advised that his sentence

would not run concurrently to state sentence); United States v. General, 278 F.3d

389, 395 (4th Cir. 2002) (“Rule 11 . . . does not require a district court to inform

the defendant of mandatory consecutive sentencing.”). 

Like Mr. Carver, Mr. Hahn was aware of the possibility that he could

receive a consecutive sentence. See Aplt. App., Vol. 1 at 93, 240 (affidavits of

counsel stating that they advised Mr. Hahn that district court had discretion to

impose concurrent sentence). Thus, the district court’s failure to inform

Mr. Hahn that his sexual-exploitation sentence would run consecutively to his

drug and firearms sentence did not render his guilty and nolo contendere pleas

involuntary. See Carver, 160 F.3d at 1268. We therefore conclude he entered his

pleas knowingly and voluntarily, his constitutional rights were not violated, and

the district court satisfied the requirements of Rule 11. 

Accordingly, we AFFIRM the judgment of the district court.2

 

Entered for the Court

Stephanie K. Seymour

Circuit Judge