FILED

United States Court of Appeals

Tenth Circuit

February 2, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 10-3030

ERIC R. BURKE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 2:06-CR-20128-CM-1)

William D. Lunn, Jr., William D. Lunn Attorney at Law (G. Gordon Atcheson,

The Atcheson Law Firm, Westwood, Kansas, on Opening Brief), Tulsa,

Oklahoma, for Appellant.

James A. Brown, Assistant United States Attorney (Lanny D. Welch, United

States Attorney, with him on the brief), Office of the United States Attorney,

Topeka, Kansas, for Appellee.

Before TYMKOVICH, TACHA, and BALDOCK, and Circuit Judges.

TYMKOVICH, Circuit Judge.

After police officers discovered firearms and over 1,500 images of

pornography—many involving children—at the home of Eric Burke, he pleaded
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guilty to several child pornography and firearms charges. The district court

sentenced him to a 168-month sentence. He now appeals, contending the district

court erred in (1) denying his motion to suppress evidence seized at his home

because the search warrant and supporting affidavit lacked particularity, and (2)

in giving him an excessive sentence in relation to the federal firearm charge. He

also claims the government breached the plea agreement, thus making his

sentence invalid. 

Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM Burke’s

sentence. 

I. Facts

In 2006, Eric Burke’s wife, Michelle, contacted the Leavenworth County

Sheriff’s Office and spoke to one of the detectives. She advised the detective that

several days earlier, she had observed a number of compact discs lying on top of

clothing in an overnight bag that belonged to her husband. She explained Burke

had been out of town the week before and had left the bag open on the floor in a

room on the lower level of her house. 

Curious about the CDs, Mrs. Burke inserted them into the computer and

discovered they contained images of minor girls engaged in various sexual acts. 

She also informed the detective her husband was a convicted sex offender and had

guns in the home. She indicated she had waited several days before advising

authorities about finding the CDs because she was afraid of how her husband
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would react if he found out. She also advised the police Burke might have kept a

lap top computer in his truck. 

With this information detectives prepared an affidavit and application for a

search warrant. The affidavit said, in relevant part to this appeal, that “Michelle

Burke . . . told [the detective] that she found child pornography on CD-Roms by

the family computer located in her residence.” Supp. R., Vol. 1 at 23. The

affidavit did not elaborate on the definition of “child pornography.” The affidavit

did explain Mr. Burke copied the CDs off the computer, is a convicted sexual

offender, had guns in the house, and had told his wife “he would kill anyone who

breaks up his family again.” Id. 

Based on the affidavit, a magistrate judge issued a search warrant. Relying

on the warrant, officers searched Burke’s home and truck for computer and other

media relating to child pornography, as well as firearms. They discovered and

seized a loaded .30-30 caliber Winchester rifle, a box of .30-30 ammunition, a .22

caliber Remington rifle, an Essex Arms pistol frame, as well as a great deal of

electronic media, including Burke’s computers. A forensics examiner later found

on the CD-Roms some 1,155 images of pornography, many of which constituted

child pornography. Further, a review of the home computer established it had

been used to access possible child pornography websites. Several of the

recovered images were identified as known victims at the National Center for

Missing and Exploited Children. 
-4-

After his arrest, and consistent with a written plea agreement with the

United States, Burke pleaded guilty to violating 18 U.S.C. § 2252(a)(4)(B)

(Possession of Child Pornography) and 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

(Felon in Possession of Firearms). As part of that agreement, Burke waived the

right to appeal most issues related to his conviction and sentence, except his

claim regarding suppression of evidence and the district court’s denial of his

motion to dismiss the firearms charge. 

The district court sentenced Burke to 168 months in prison and a 5-year

term of supervised released. Burke challenged the sentence, claiming (1) the

search warrant was too general and thus violated the Fourth Amendment’s

prohibition against general searches, and (2) the government breached the plea

agreement because the agreement’s factual recitation noted Burke had 155 images

of pornography but the government provided the court evidence of 1,155 images

at sentencing (contending the 155 number in the plea agreement was merely a

typographical error), increasing the length of Burke’s sentence.

Having lost on both arguments below, Burke now appeals, raising several

issues. 

II. Discussion

Burke raises four issues on appeal, two relating to the suppression of

evidence and two relating to the propriety of his sentence. 
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A. Suppression of Evidence

Burke argues the district court erred in two ways in denying his motion to

suppress. First, he contends the detective’s affidavit was inadequate to provide

the magistrate with probable cause to issue the search warrant. This argument

was not raised in the district court Second, in an argument he pursued

unsuccessfully below, he claims the search warrant was too general and did not

sufficiently limit the search of his home to those items showing his use of child

pornography. As we explain below, neither has merit. 

1. Adequacy of Affidavits

Burke contends the affidavits provided to the magistrate judge lack

sufficient detail to support probable cause. For example, he posits that because

the affidavit merely says his wife found “child pornography,” instead of providing

specific descriptions of the images she saw, it is too general to support probable

cause. But none of these arguments was presented to the district court at the

suppression hearing, and they are therefore waived on appeal.

Federal Rule of Criminal Procedure 12(e) provides, “A party waives any

Rule 12(b)(3) defense, objection, or request [which includes motions to suppress

evidence] not raised by the deadline the court sets under Rule 12(c) or by any

extension the court provides.” We have held under this provision, “When a

motion to suppress evidence is raised for the first time on appeal, we must decline

review.” United States v. Brooks, 438 F.3d 1231, 1240 (10th Cir. 2006); see also
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United States v. Buchanan, 985 F.2d 1372, 1380 (8th Cir. 1993) (holding

defendants must raise a motion to suppress before trial or the objection is deemed

to be waived). 

We have also held “this waiver provision applies not only to the failure to

make a pretrial motion, but also to the failure to include a particular argument in

the motion.” United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir. 1991); see

United States v. Banks, 451 F.3d 721, 727 (10th Cir. 2006) (explaining the

general rule that if a party fails to raise a specific argument in a suppression

hearing they waive that argument on appeal); see also United States v. Rose, 538

F.3d 175, 185 (3d Cir. 2008) (“Under Federal Rule of Criminal Procedure 12, a

federal criminal defendant is barred, absent good cause, from raising a reason to

suppress evidence for the first time on appeal. This conclusion finds support in

the Criminal Rules’ text, their history, our Court’s case law, and the policy

underlying Rule 12.”); United States v. Pope, 467 F.3d 912, 918–19 (5th Cir.

2006) (“We have also held that failure to raise specific issues or arguments in

pre-trial suppression proceedings operates as a waiver of those issues or

arguments for appeal.”). 

Burke filed a timely pretrial motion to suppress evidence, and the district

court held an evidentiary hearing before denying the motion. The briefs and the

oral arguments at the hearing focused exclusively on whether the warrant lacked

sufficient particularity to guide the police in their search of Burke’s property. At
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no time did Burke argue the affidavit was insufficient to provide the magistrate

with probable cause. That contention appears for the first time on appeal, and we

thus consider it waived. 

We recognize Rule 12(e) provides “a ‘single narrow exception to the

waiver rule.’” United States v. Hamilton, 587 F.3d 1199, 1215–16 (10th Cir.

2009) (quoting United States v. Santos Batista, 239 F.3d 16, 19 (1st Cir. 2001)). 

The rule provides, “For good cause, the court may grant relief from the waiver.” 

FED. R. CRIM. P. 12(e). In applying Rule 12 at the appellate level, we have noted

that “a party’s failure to raise a specific argument in a suppression hearing results

in waiver on appeal unless the party is able to show cause why it failed to raise

the argument below.” Hamilton, 587 F.3d at 1216 (quotations omitted) (emphasis

added). We rarely, however, grant relief under the good-cause exception. Id.; see

also United States v. Wilson, 115 F.3d 1185, 1191 (4th Cir. 1997) (finding lack of

good cause where “[t]he record shows that sufficient information was available to

defense counsel before trial that would have enabled him to frame his suppression

motion to include the execution of the search warrant”). 

Burke has made no effort to “demonstrate [good] cause for his failure to

raise the issue.” Dewitt, 946 F.2d at 1502. He made no showing of cause in his

opening brief, and he failed to do so again in his reply brief despite the

government’s raising the waiver issue in its response. Furthermore, our own

review of the record revealed “no impediment to [Burke’s] ability to raise the
1

 Our review of Tenth Circuit case law indicates the confusion arose from

several cases applying plain error review after a suppression motion has been

waived. Those cases, while few in number, conflate Rule 52 with Rule 12. In

United States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988), for example, we

stated that we would consider only those arguments made before the trial court

unless plain error resulted in manifest injustice. We did so, however, relying on

an earlier Tenth Circuit opinion to which Rule 12 did not apply. See United

States v. Taylor, 800 F.2d 1012, 1017 (10th Cir. 1986) (applying Rule 52). The

Orr opinion moreover did not address Rule 12’s waiver provision, suggesting

neither the parties nor the court considered Rule 12 should apply instead of Rule

52.

Relying on Orr, several of our later cases, though not definitively requiring

an application of plain error review when a defendant has waived a motion to

suppress, have nonetheless conducted plain error review after noting the

defendant had waived the issue. See Dewitt, 946 F.2d at 1502 (engaging in a

lengthy Rule 12 waiver analysis, then stating in just one sentence there was no

plain error in the district court’s rulings); United States v. Meraz-Peru, 24 F.3d

(continued...)

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issue.” Id. Accordingly, we conclude Burke has waived appellate review of his

suppression arguments vis-a-vis the sufficiency of the affidavits.

We recognize that, based on Federal Rule of Criminal Procedure 52(b)’s

general provision for plain error review, we have “[i]n several cases . . . engaged

in plain-error review even after a defendant has failed to make a motion to

suppress evidence prior to trial.” Brooks, 438 F.3d at 1240 n.4. Burke requests

we do so again in his case. To the extent these prior cases have created confusion

in this area, we clarify and hold that Rule 12, and not Rule 52, applies to pretrial

suppression motions and a suppression argument raised for the first time on

appeal is waived (i.e., completely barred) absent a showing of good cause for why

it was not raised before the trial court.1

 This holding applies not only where the
1

(...continued)

1197, 1198 (10th Cir. 1994) (holding Rule 12 waiver, then noting previous cases

have gone on to find an absence of plain error after determining Rule 12 waiver). 

These cases, it seems, recognized Rule 12’s operation but nonetheless

acknowledged Orr’s invocation of plain error review. 

Most of our cases, however, and especially our most recent ones, have

simply applied Rule 12 in its proper context and have not applied plain error

review when a defendant raises a suppression argument for the first time on

appeal. See, e.g., Brooks, 438 F.3d at 1239–40; United States v. White, 584 F.3d

935, 948–49 (10th Cir. 2009) (refusing to hear an argument raised for the first

time on appeal); Hamilton, 587 F.3d at 1213–1216 (invoking Rule 12 waiver but

noting Tenth Circuit case law has on occasion applied plain error review). 

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defendant failed to file a suppression motion at all in the district court, but also

where the motion filed lacked the specific issues raised on appeal. 

As we noted in our survey of the case law in Hamilton, several other

circuits “have strongly questioned the correctness of” engaging in plain error

review after a defendant has failed to raise a suppression motion prior to trial. 

587 F.3d at 1216 n.9. See Rose, 538 F.3d at 182–83; United States v. ChavezValencia, 116 F.3d 127 (5th Cir. 1997); United States v. Wright, 215 F.3d 1020

(9th Cir. 2000). Those decisions’ reasoning, which we agree with, relies on both

the plain text of the Rules of Criminal Procedure and policy considerations. 

When read alone, both Rule 52(b) and Rule 12 appear applicable to pretrial

suppression motions. When considered together, however, Rule 12’s waiver

provision must prevail: 

The latter is much more specific than is Rule 52(b); while Rule 52(b)

states generally that “[a] plain error that affects substantial rights
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may be considered even though it was not brought to the court’s

attention,” Rule 12(e) singles out motions to suppress, stating that a

“party waives any [suppression] defense, objection, or request not

raised by the [pretrial] deadline the court sets.” (Emphasis added.) 

In this context, “we apply the well-settled maxim that specific

statutory provisions prevail over more general provisions.”

Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006) (internal

quotation marks omitted). Thus we avoid “applying a general

provision when doing so would undermine limitations created by a

more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511,

116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996).

Rose, 538 F.3d at 182–83. Thus, under the plain text of the rules, Rule 12’s

absolute waiver controls. 

In support of this reasoning, our cases suggest “a number of policy reasons

for requiring defendants to move to suppress evidence prior to trial and for

deeming their failure to do so to be a waiver.” Hamilton, 587 F.3d at 1214

(quotations omitted). First, “because the exclusionary rule was crafted more to

benefit society at large by deterring overzealous police conduct than to personally

benefit defendants, ‘the exclusionary rule should be used sparingly in instances

where its deterrent effect on police violations is minimal (as with appellate review

for plain error).’” Id. (quoting Brooks, 438 F.3d at 1240). Furthermore, in most

circumstances “fairness concerns” militate in favor of a waiver rule because

“‘although the government can appeal an adverse ruling on a suppression motion

prior to trial, it cannot do so once jeopardy has attached.’” Id. (quoting Brooks,

438 F.3d at 1240); see also Rose, 538 F.3d at 183 (citing Chavez-Valencia, 116

F.3d at 132). Moreover, if “a defendant has not raised a suppression issue before
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the district court, the Government (under an assumption that its proffered

evidence was admissible) may plausibly conclude during trial that it does not

need to accumulate and introduce additional evidence to prevail.” Rose, 538 F.3d

at 183. Finally, allowing a defendant to challenge the inclusion of evidence on

appeal places the government in the difficult position of “defending itself based

on a potentially meager record.” Brooks, 438 F.3d at 1240. 

We recognize our cases have sent a mixed message, to say the least. For

example, in United States v. Jones, 530 F.3d 1292, 1298 n.1 (10th Cir. 2008), we

used a footnote to highlight the confusion, and then applied plain error review in

a challenge to joinder. In other cases, we have applied plain error review, either

invoking it while calling its application into question, or simply imposing waiver

without even mentioning plain error. See, e.g., Hamilton, 587 F.3d at 1212–14;

Dewitt, 946 F.2d at 1502. While some of those cases could be seen as

controlling, we are convinced none of them are. We take the opportunity with

this case to resolve explicitly the tension between Rule 52(b) and Rule 12 where

suppression motions are concerned. No previous case explicitly addresses and

resolves the issue and thus no previous case has provided a clear rule for

subsequent courts and litigants to follow. 

Another reason for the confusion lies in the fact that in the Rule 52(b)

context, the Supreme Court defined “waiver” in a way that makes Rule 12’s use

of the term necessarily inconsistent with Rule 52(b). United States v. Olano, 507
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U.S. 725, 733 (1993). Olano defined “waiver” as the “intentional relinquishment

or abandonment of a known right,” which results in a complete bar. Id. Under

Olano an inadvertent “failure to make the timely assertion of a right” is not a

waiver but a forfeiture, which results in plain error review. Id. Thus, regardless

of how we interpret and apply Rule 12, an inconsistency regarding the definition

of “waiver” will arise. If we interpret Rule 12 to allow for plain error review,

then the term “waives” under Rule 12 will not mean what it means under Olano

(i.e., a complete bar). On the other hand, if we interpret Rule 12’s waiver as a

complete bar for noncompliance, regardless of whether that noncompliance was

intentional, then the term “waives” under Rule 12 will include some acts that

under Olano would only be an unintentional forfeiture. 

Although we recognize the conundrum Olano and the rules have placed on

us, we still think our reading of Rule 12 is appropriate:

Rule 12’s history . . . indicates that its text means what it says. As

previously noted, in 1974 the Rules were changed to require—with

an explicit threat of waiver—that motions to suppress be raised prior

to trial in accordance with the district court’s desired timetable. In

2002, well after Olano, the waiver provision of section (f) was

moved to section (e) and its text was revised, but the Advisory

Committee kept the term “waiver” in place. See FED. R. CRIM. P. 12

advisory committee’s note to 2002 amendments. Had the drafters

thought that term outdated in light of Olano or other precedent, they

could have changed the term to “forfeiture,” but they did not.

Rose, 538 F.3d at 183. We agree with the Third Circuit’s reasoning. There has

been ample opportunity to change the language of Rule 12(e) since Olano. 
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Congress and the Supreme Court have not done so, and it is not our place to do it

now. Moreover, the Supreme Court itself seems to recognize there are instances

where “waiver” will not meet the definition Olano gave it in the Rule 52(b)

context. For example, in Gonzales v. United States, 553 U.S. 242 (2008), the

Court recognized defendants could waive certain rights (i.e., what arguments to

pursue, what evidentiary objections to raise, and what stipulations to make

regarding the admission of evidence) without doing so knowingly and voluntarily. 

Id. at 248–49. Even Olano itself stated, “[W]hether the defendant must

participate personally in the waiver; whether certain procedures are required for

waiver; and whether the defendant’s choice must be particularly informed or

voluntary, all depend on the right at stake.” 507 U.S. at 733. 

In any event, Rule 12 itself provides a safety valve for counsel’s

inadvertent failure to raise an argument at the suppression hearing. The “good

cause” exception protects against a miscarriage of justice as capably as plain error

review.

Accordingly, we hold Rule 12’s waiver provision, not Rule 52(b)’s plain

error provision, governs motions to suppress evidence, including specific

arguments to suppress evidence, raised for the first time on appeal. Such motions
2

 This opinion has been circulated to all active members of this court, and

it is our unanimous decision that Rule 12(e)’s waiver requirement precludes plain

error review on appeal.

3

 Despite this conclusion, as the government conceded at oral argument,

this affidavit was unnecessarily vague. We encourage law enforcement officers in

the future to draft affidavits in such a way that will avoid appeals such as this

one.

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and arguments are waived absent a showing of good cause for why they were not

raised below.2

 

We therefore refuse to consider Burke’s affidavit argument, even under a

plain error analysis.3

2. Generality of the Search Warrant

Burke next contends, as he did before the trial court, that the warrant issued

to allow the search of his home did not properly limit the scope of the search and

thus violated the Fourth Amendment. He argues that because the warrant did not

confine the search to those computer files containing pornography, it amounted to

a general warrant prohibited by the Constitution. We review “[d]eterminations

relating to the sufficiency of a search warrant . . . de novo.” United States v.

Roach, 582 F.3d 1192, 1200 (10th Cir. 2009). 

The Fourth Amendment provides, “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to
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be searched, and the persons or things to be seized.” This particularity

requirement “ensures that the search will be carefully tailored to its justifications,

and will not take on the character of the wide-ranging exploratory searches the

Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). 

Our case law requires that “warrants for computer searches must affirmatively

limit the search to evidence of specific federal crimes or specific types of

material.” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005). The

ability of computers “to store and intermingle a huge array of one’s personal

papers in a single place increases law enforcement’s ability to conduct a

wide-ranging search into a person’s private affairs, and accordingly makes the

particularity requirement that much more important.” United States v. Otero, 563

F.3d 1127, 1132 (10th Cir. 2009). 

We emphasize that “practical accuracy rather than technical precision

controls the determination of whether a search warrant adequately describes the

place to be searched.” United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir.

1998) (citations omitted). “A warrant need not necessarily survive a hypertechnical sentence diagraming and comply with the best practices of Strunk &

White to satisfy the particularity requirement.” Otero, 563 F.3d at 1132. But it

should enable “‘the searcher to reasonably ascertain and identify the things

authorized to be seized.’” Riccardi, 405 F.3d at 862 (quoting United States v.

Carey, 172 F.3d 1268, 1271 (10th Cir. 1999)). 
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After listing the crimes officers suspected Burke of committing—violation

of federal firearms laws and sexual exploitation of a child—the warrant called for

officers to search for and seize the following as “contraband, evidence, fruits, or

instrumentalities of said crime(s)”:

[1] Personal computer specifically a Hewlett Packard, additional

computers and hard drives to include the contents within the above

listed truck. Any and all types of media storage related to the

storage of information of computer files to include: Floppy discs,

compact discs, flash drives, external media, etc. 

[2] Firearms ammunition and items related to firearms possession. 

[3] Due to the nature of the charges any and all items related to child

pornography in any media form, photos, magazines and . . .

video/compact discs shall be seized by searching officers as

contraband.

Supp. R., Vol. 1 at 19. 

In arguing the warrant lacks particularity, Burke contends that because the

warrant did not confine the search to computer files containing pornography, it

was too general. For several reasons, Burke’s arguments are unpersuasive.

First, we agree with the district court that the warrant was sufficiently

particular. The third paragraph begins with “due to the nature of the charges,”

and the charge listed on the warrant is the sexual exploitation of a child followed

by a statutory reference, a charge “narrow enough to meet the fourth amendment’s

requirement” by bringing to officers’ attention the purpose of the search. United

States v. Leary, 846 F.2d 592, 601 (10th Cir. 1988) (“[S]ome federal statutes may

be narrow enough to meet the fourth amendment’s requirement [while others]
4

 We emphasize that while we find the warrant in this case meets

constitutional muster, the government can do better. We are confident an increase

in particularity and detail will help avoid appeals like this one. Despite our

conclusion on the facts of this case, we encourage law enforcement officers in the

future to help the issuing court produce a warrant that obviates the flaws

identified in this case.

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cover a broad range of activity and the reference to those statutes does not

sufficiently limit the scope of the warrant.”). Also, the third paragraph

emphasizes officers are to seize “any and all items related to child pornography in

any media form.” That clause again notifies officers as to why they are searching

for the items listed in paragraph 1. A sufficient nexus between the child

pornography charge and the items to be searched existed to allow the warrant to

pass constitutional muster.4

Burke counters this conclusion by pointing to United States v. Carey, 172

F.3d 1268, 1271–72 (10th Cir. 1999), where we held officers may not expand the

scope of a search beyond its original justification. But Carey does not support

Burke’s argument. There, the original warrant authorized a search of a computer

for evidence of illegal drug sales. Id. at 1270. Upon searching the computer,

officers found evidence of possession of child pornography and began searching

the computer for those images, not for evidence of illegal drug sales. Id. at 1271. 

We held officers needed another warrant to search for the child pornography

evidence because those images were beyond the scope of the original warrant. Id.

at 1271, 73–74. We later clarified Carey stands for the “proposition that law
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enforcement may not expand the scope of a search beyond its original

justification.” United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). 

Burke’s case is not one in which officers seized his computer in hopes of finding

evidence of one type of crime, then searched for evidence of other crimes. 

Rather, the warrant directs officers to search for evidence related to the crime

listed, which was sexual exploitation of a child. That is precisely the kind of

evidence officers searched for and found on Burke’s computer and CD-Roms.

The government also contends Burke’s argument regarding the particularity

of the warrants is moot. As far as we can tell, the government’s argument appears

to be that because Burke is challenging the particularity of the warrant with

regards to “computer” files, his argument is moot because the evidence at issue in

this case was seized from CD-Roms, not from a computer. The government

misses the thrust of Burke’s argument, which is that the warrants are not

particular enough to limit the scope of the officers’ search for digital evidence to

only those files containing child pornography. That argument applies to any form

of digital storage, whether CD-Roms, hard drives, memory sticks, etc. While we

reject Burke’s contention in this case, we recognize the validity of his concerns. 

See Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 MISS L.J. 85

(2005) (discussing the difference between searches for physical evidence and

those for digital evidence and advocating for the rules to require one warrant for
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the search and seizure of physical evidence such as computers and a separate

warrant for the search of particular files on those computers). 

Given the above, we agree with the district court that the warrant was

sufficiently particularized to overcome the Fourth Amendment’s bar on general

searches. 

B. Sentencing 

Burke also provides two reasons why the district court erred at sentencing. 

First, he avers the government breached the plea agreement when at sentencing it

produced evidence he had over 600 images of child pornography in his home. 

Second, he contends the district court erred in deviating from the guidelines

without explanation on his gun charge. We disagree. 

1. The Plea Agreement

Burke first argues the government breached the plea agreement by taking

the position at sentencing that his offense level should be based on the 1,155

images discovered on his CD-Roms. He contends that because the factual

recitation in the plea agreement noted the forensic examiner had discovered only

155 images of child pornography, the government could not provide evidence of

1,155 images at sentencing without breaching the agreement. That breach, he

argues, resulted in the trial judge sentencing him to 168 months instead of 121

months. He also argues the district court erred in giving the 168-month sentence

on the alternative ground that the additional images not referenced in the plea
5

 We nonetheless point out that the relevant conduct provision of the plea

agreement does not prohibit the district court from applying the Guidelines’

relevant conduct provision, USSG 1B1.3, in its entirety. The plea agreement tells

the parties that the district court may consider conduct charged in dismissed

counts and uncharged related criminal activity, in addition to whatever else USSG

1B1.3 includes in its definition of relevant conduct. 

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agreement were relevant conduct under the United States Sentencing Guidelines

(USSG) and could be factored into the sentence. Because we find the government

did not breach the plea agreement, we do not address Burke’s contentions

regarding whether the additional images constituted relevant conduct.5

We review de novo a “claim that the government has breached a plea

agreement.” United States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir.

2006). To determine whether a breach has occurred, we “1) examine the nature of

the promise; and 2) evaluate the promise in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” Id. (quotations

omitted). “General principles of contract law define the government’s obligations

under the agreement, looking to the express language and construing any

ambiguities against the government as the drafter of the agreement.” United

States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003). And when the

government breaches a plea agreement, “[a] defendant . . . is entitled to a remedy

that restores the meaningfulness of his bargain.” United States v. VanDam, 493

F.3d 1194, 1203 (10th Cir. 2007). 
-21-

Turning to the express language of the plea agreement, the government

made three promises in return for Burke’s guilty plea: (1) “To not file any

additional charges against the defendant arising out of the facts forming the basis

for the present indictment”; (2) “To recommend a sentence at the low end of the

applicable guideline range”; and (3) “To recommend the defendant receive a two

. . . level reduction in the applicable offense level under U.S.S.G. § 3E1.1 for

acceptance of responsibility.” R., Vol. 1, Doc. 78 at 5. The agreement further

provides that “defendant understands that the sentence to be imposed will be

determined solely by the United States District Judge. The United States cannot

and has not made any promise or representation as to what sentence the defendant

will receive.” Id. at 7. 

The agreement also explicitly states that “[d]efendant understands and

agrees . . . there shall be no . . . restriction on the use of the information: (1)

previously known to the United States; (2) revealed to the United States by, or

discoverable through, an independent source.” Id. The plea agreement imposes

a duty upon the United States to “provide to the court and the United States

Probation Office all information it deems relevant to determining the appropriate

sentence in this case. This may include information concerning the background,

character, and conduct of the defendant including the entirety of the defendant’s

criminal activities. Id. at 10 (emphasis added). Finally, the United States

reserved in paragraph 16 of the agreement “its right to make any
-22-

recommendations it deems appropriate regarding the disposition of this case,

subject only to any limitations set forth in this plea agreement.” Id. 

Nor does the plea agreement in any way bind the United States to the

factual recitation. To the contrary, the agreement provides the United States

could use any information it already had or could discover through an

independent source, which would include the number of images. It also expressly

imposes a duty on the government to provide the court with whatever information

it deemed relevant. The agreement further unambiguously provides that the court,

not the government, would determine Burke’s sentence. By informing the court

of the accurate number of pornographic images, the government adhered to this

portion of the agreement. Notably, the larger number of images was set forth in

the pre-sentence report and Burke chose not to register any objection prior to

sentencing. See FED. R. CRIM. P. 32(f) (providing the procedure for objecting to

pre-sentence reports).

Burke points to two cases he contends demonstrate the government is

bound by the quantity set forth in the factual recitation of the plea agreement. 

See United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996); United States v.

Boatner, 966 F.2d 1575, 1578–79 (11th Cir. 1992). In both of those cases,

however, the government explicitly stipulated to an agreed fact for purposes of

the cases, including sentencing—the contested drug quantities or a specific term

of imprisonment. We have nothing comparable here. 
6

 The government did try to argue against the two-level reduction because

it believed Burke had violated promises he had made in the plea agreement. The

trial court denied the government’s motion, and neither party appeals that

decision. 

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The government’s only contractual obligations to Burke at sentencing were

to recommend a sentence at the low end of the applicable range determined by the

court, to refrain from adding additional charges, and to recommend a reduction

for acceptance of responsibility. This the government did.6

 It had no other

obligations to Burke under the agreement and thus complied with its end of the

contractual bargain. 

While we recognize we must construe ambiguous terms against the

government, we see no ambiguity in this plea agreement. We find support for our

conclusion in United States v. Rodriguez-Rivera, 518 F.3d 1208 (10th Cir. 2008),

where under similar circumstances and a similarly worded plea agreement we

reached the same conclusion. Id. at 1212–14 (holding the government did not

breach its agreement when the factual recitation noted a lower quantity of drugs

than what the government advocated for in the pre-sentence report). Burke was

free to strike a deal with the government to advocate a specific number of images

at sentencing, but nothing in this agreement comes close to accomplishing that

goal.

Accordingly, we conclude the government did not breach the plea

agreement. 
-24-

2. The Gun Charge Sentence

Burke contends the district court erred, both procedurally and

substantively, in sentencing Burke on the gun count. Because we concluded the

government did not breach the plea agreement, we also find Burke has explicitly

waived this argument pursuant to paragraph 13 of the plea agreement, which

reads, 

Defendant knowingly and voluntarily waives any right to appeal or

collaterally attack any matter in connection with this prosecution,

conviction and sentence (including the length and conditions of

supervised release, as well as any sentence imposed upon a

revocation of supervised release), except with regards to the

suppression issue . . . and the court’s denial of the motion to dismiss

the firearm charge. . . . By entering into this agreement, the

defendant knowingly waives any right to appeal a sentence imposed

which is within the guideline range determined appropriate by the

court. 

R., Vol. 1, Doc. 78 at 9. 

When determining whether a plea agreement is enforceable, we employ the

analysis set forth in United States v. Hahn, 359 F.3d 1315, 1325–28 (10th Cir.

2004). That analysis requires a determination of whether (1) the disputed appeal

falls within the scope of the waiver of appellate rights, (2) the defendant

knowingly and voluntarily waived his appellate rights, and (3) enforcing the

waiver would result in a miscarriage of justice. Id. 

The explicit waiver encompasses any appeal related to any matter in this

case except for Burke’s suppression claim and his motion to dismiss the gun
-25-

charge. Moreover, the sentence was within the guideline range determined

appropriate by the court. Thus, Burke’s claim regarding the validity of his

sentence is clearly within the scope of the waiver. 

“The second prong of the analysis requires the court to ascertain whether

the defendant knowingly and voluntarily waived his appellate rights.” Id. at

1325. We do this by first examining “whether the language of the plea agreement

states that the defendant entered the agreement knowingly and voluntarily.” Id.

(citing United States v. Elliott, 264 F.3d 1171, 1174 n.1 (10th Cir. 2001)). That is

clearly the case here. We look second for an adequate Rule 11 colloquy. Id.; see

also FED. R. CRIM. P. 11. During the plea colloquy, Burke affirmed his

understanding of the appellate waiver of his sentence, and we are satisfied the

colloquy was sufficient.

Finally, the third prong of our “enforcement analysis requires the court to

determine whether enforcing the waiver will result in a miscarriage of justice.” 

Hahn, 359 F.3d at 1327. “[E]nforcement of an appellate waiver does not result in

a miscarriage of justice unless” (1) the district court relied on an impermissible

factor such as race, (2) ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid, (3) the sentence exceeds the

statutory maximum, or (4) the waiver is otherwise unlawful. Id. (citing Elliott,

264 F.3d at 1173). After a thorough review of the record we do not find, and

Burke does not argue, any of the above situations occurred.
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Because we find the plea agreement valid, we conclude Burke has waived

his right to appeal the gun charge sentence, and we therefore do not address his

arguments. 

III. Conclusion

For the foregoing reasons, we AFFIRM Burke’s sentence and the district

court’s denial of his motion to suppress evidence.