UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JEREMY HARRIS, 

 Defendant - Appellant. 

No. 15-3152 

(D.C. No. 6:13-CR-10156-MLB-2) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges. 

_________________________________ 

 After accepting a plea agreement containing a broad appeal waiver, 

Jeremy Harris pleaded guilty to one count of conspiracy to distribute marijuana in 

violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court accepted his guilty 

plea, but it deferred deciding whether to accept the plea agreement until after it saw 

the presentence report. The court informed the parties that if it sentenced Mr. Harris, 

“the parties may assume that [the court has] accepted the plea agreement.” R. at 108. 

Eventually the district court sentenced Mr. Harris to 144 months’ imprisonment, 

 *

 This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 14, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

below the advisory guideline range of 210 to 260 months. At sentencing, however, 

the district court never mentioned the plea agreement. And despite the appeal 

waiver, it stated to Mr. Harris, “You can appeal if you wish. [Defense counsel] can 

advise you about whether an appeal will do you any good. But if you wish to appeal, 

he’ll file a notice of appeal for you.” Mot. to Enforce, Attach. B at 20. Mr. Harris 

filed a pro se notice of appeal. 

The government moved to enforce the appeal waiver under United States v. 

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In Hahn, we held that 

we would enforce appeal waivers as long as three conditions were met: (1) the 

matter on appeal “falls within the scope of the waiver”; (2) the defendant “knowingly 

and voluntarily waived his appellate rights”; and (3) enforcing the waiver will not 

“result in a miscarriage of justice.” Id. at 1325. 

Mr. Harris’s counsel responded that opposing the motion to enforce would be 

frivolous and moved to withdraw. See Anders v. California, 386 U.S. 738, 744 

(1967). Upon fully examining the proceedings, as Anders requires, see id., we 

identified at least one non-frivolous issue—whether the district court ever accepted 

the plea agreement—and denied counsel permission to withdraw until Mr. Harris was 

appointed new counsel. 

The response by Mr. Harris’ second counsel acknowledges the issue this court 

identified, but does not argue that the waiver never came into effect because the 

district court did not accept the plea agreement. Rather, the response implicitly 
3 

concedes that the court accepted the plea agreement and instead focuses on a 

different issue: 

Here, Mr. Harris does not contend that his potential challenges to the 

sentence are beyond the purview of the written appeal waiver, or that a 

manifest injustice will occur absent appellate intervention. But the district 

court’s post-sentencing grant of the right to appeal, coupled with the 

Government’s failure to object, should render the appeal waiver 

unenforceable. 

Amend. Resp. at 5. Therefore, we consider only whether the district court’s 

statement at sentencing invalidated the waiver in the written plea agreement. See 

United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (holding that the court 

need not consider a Hahn factor that the defendant does not contest). 

Mr. Harris relies on United States v. Smith, 500 F.3d 1206, 1211 (10th Cir. 

2007), in which the district court informed a defendant that she had a right to appeal, 

even though her plea agreement contained an appeal waiver. This court concluded 

that “the court’s statement did not negate Ms. Smith’s prior written waiver of her 

appellate rights.” Id. But we also “acknowledge[d] that such instructions may have 

the potential to render appellate waivers invalid under different circumstances, such 

as when the instructions are inconsistent with the defendant’s rights or when the 

district court’s statement has the serious potential to confuse the defendant.” Id. at 

1212. Mr. Harris relies on this exception, asserting that “[t]hose circumstances exist 

in this case” because “the district court’s broad grant of the right to appeal was 

inconsistent with the plea agreement’s appeal waiver” and “the court’s advice was 

potentially confusing . . . about the right to appeal.” Amend. Resp. at 8. 
4 

Mr. Harris, however, ignores more apposite authority. In Hahn itself, this 

court noted that “statements made after the entry of the appeal waiver and the district 

court’s acceptance of the guilty plea cannot overcome the plain language of the 

appeal waiver.” 359 F.3d at 1328 n.14. We relied on Hahn to reject an argument 

similar to Mr. Harris’s assertions in United States v. Arevalo-Jimenez, 372 F.3d 1204, 

1206 (10th Cir. 2004), where the district court erroneously stated at sentencing that 

the defendant could appeal the calculation of his criminal history. We held that the 

statement did not invalidate a broad appeal waiver because it came after the court had 

already accepted the defendant’s plea. See id. at 1206-07. 

Although the district court later addressed the plea agreement, we have held 

that absent exceptional circumstances, the district court lacks authority to 

modify a plea agreement at sentencing. Because we find no such 

exceptional circumstances here, we hold that the district court’s statements 

at sentencing did not modify the broad language of the waiver. 

Id. at 1206 (citation and internal quotation marks omitted). Similarly, Mr. Harris 

accepted his plea agreement, including the waiver, well before his sentencing, so the 

district court’s statement at the end of sentencing could not have confused him about 

the scope of the waiver. Further, he has not shown any exceptional circumstances 

that would have allowed the district court to modify his plea agreement. As in Smith, 

Arevalo-Jimenez, and Hahn, notwithstanding the district court’s statement, the 

waiver is valid and enforceable. 

The motion to enforce is granted and this matter is dismissed. 

Entered for the Court 

Per Curiam