UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ARNELL STEWART, a/k/a “Show Off,” 

 Defendant - Appellant. 

No. 14-1276 

(D.C. No. 1:13-CR-00159-WJM-17) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, LUCERO and HARTZ, Circuit Judges. 

 

 After entering into a plea agreement that included an appeal waiver, Arnell 

Stewart pleaded guilty to conspiracy to distribute and possess with intent to distribute 

280 grams or more of cocaine base and 500 grams or more of cocaine. He was 

sentenced to 65 months’ imprisonment. Despite the waiver, Mr. Stewart has filed a 

notice of appeal to challenge the sentence. The government has moved to enforce the 

 

* 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

October 22, 2014

Elisabeth A. Shumaker 

Clerk of Court
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appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) 

(en banc) (per curiam). We grant the motion and dismiss the appeal. 

 In evaluating a motion to enforce a waiver under Hahn, we consider: 

“(1) whether the disputed appeal falls within the scope of the waiver of appellate 

rights; (2) whether the defendant knowingly and voluntarily waived his appellate 

rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” 

Id. at 1325. 

In response to the government’s motion, Mr. Stewart concedes his appeal is 

within the scope of the waiver. He argues, however, that the record does not 

affirmatively show that he knowingly and voluntarily waived his right to appeal his 

sentence and that enforcing it would be a miscarriage of justice. In particular, he 

argues: (1) he did not understand the appeal waiver and/or his lawyer did not 

effectively explain the waiver to him; and (2) the district court failed to “fully inform 

him of his appellate rights – or lack thereof” at the subsequent sentencing hearing. 

Resp. at 1. 

At the change-of-plea hearing, Mr. Stewart’s lawyer was confused as to 

whether the plea agreement contained a waiver of a claim of ineffective assistance of 

counsel concerning his sentence. After the district court directed him to specific 

language in the agreement, the lawyer confirmed that the “waiver does not include 

changes in the Guidelines or sentencing statute [or] what the Court has indicated 

about effective assistance or prosecutorial misconduct.” Plea Hr’g Tr. at 12. The 
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court then asked Mr. Stewart: “[D]o you understand and do you agree to the 

limitations contained in the Plea Agreement on your right to appeal the sentence I 

will impose in this case or the manner in which I will determine it?” Id. Mr. Stewart 

said: “I don’t,” and asked to speak with his lawyer. Id. After conferring with 

counsel, Mr. Stewart told the court: “Yes, your Honor, I understand.” Id. Setting 

aside the fact that the waiver was not as broad as Mr. Stewart’s lawyer initially 

thought, there is no evidence that his lawyer was ineffective in explaining it to him. 

More to the point, Mr. Stewart affirmatively told the court that he understood the 

waiver. 

Mr. Stewart also faults the district court because “when [it] made its findings 

of fact and conclusions of law, it did not specifically find Mr. Stewart knowingly and 

voluntarily waived his appellate rights.” Resp. at 3. We disagree in light of the fact 

that the court found that Mr. Stewart “has read and understands the terms of his 

Plea Agreement, including his limited waiver of appeal and . . . collateral challenge 

rights . . . [and] has knowingly and voluntarily signed [the Plea Agreement].” 

Plea Hr’g Tr. at 17. 

Last, Mr. Stewart argues that the district court should have revisited the plea 

agreement with him prior to imposing the sentence. He acknowledges that “a court’s 

statements during the sentencing hearing do not invalidate a plea agreement or the 

voluntariness of an appellate waiver,” but argues that the court should have gone over 
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the plea agreement to afford him a “last chance to withdraw his plea.” Resp. at 5. 

He fails to cite any authority to support such a requirement. 

The motion to enforce is granted, and this appeal is dismissed. 

 Entered for the Court 

 Per Curiam