UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RYAN B. SCHMIDT, Defendant - Appellant. No. 15-3089 (D.C. No. 6:14-CR-10159-EFM-1) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , EBEL , and BACHARACH , Circuit Judges.

This matter is before the court on the government’s motion to dismiss defendant Ryan B. Schmidt’s appeal because it falls within the scope of the appeal waiver contained in his Plea Agreement. We grant the gove rnment’s motion and dismiss the appeal.

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y 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 

### July 6, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - I. Schmidt pleaded guilty to one count of robbery of a business engaged in interstate commerce, in violation of 18 U. S.C. § 1951(a), and one count of use of a firearm during a crime of violence, in viol ation of 18 U.S.C. § 924(c). Pursuant to Fed. R. Crim. P. 11(c)(1)(c), the Plea Ag reement proposed an imprisonment sentence in the range of 168 to 300 months (14 to 25 y ears), five years’ supervised release, and a mandatory special assessment of $100 per count.
The district court sentenced Schmidt to 192 months’ imprisonment, followed by five years’ supervised release. The court also ordered him to pay a special assessment and restitution. Regarding Schmidt’s period of supervised release, the court ordered him to comply w ith its standard conditions of supervision, as well as mandatory and special supervision conditions set forth in the presentence report. One of the special conditions provides as follows: The defendant shall submit his/her pe rson, house, residence, vehicle(s), papers, business or place of empl oyment and any property under the defendant’s control to a search , conducted by the United States Probation Officer at a reasonable ti me and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release. Failure to subm it to a search may be grounds for revocation. The defenda nt shall warn any other residents that the premises may be subject to searches pursuant to this condition. R., Vol. 1 at 62 (Judgment). We hereafte r refer to this condition of supervised release as the “Search Condition.” In his Plea Agreement, Schmidt “knowingly and volu ntarily” waived his right to appeal- 3 - [A]ny matter in connection with th is prosecution, the Defendant’s conviction, or the components of th e sentence to be imposed herein including the length and conditions of supervised release. The Defendant is aware that 18 U.S.C. § 3742 affords a Defendant the right to appeal the conviction and senten ce imposed. By en tering 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

. . . . In other words, th e Defendant waives the right to appeal the sentence im posed in this ca se except to the extent, if any, the court depart s upwards from the applicable sentencing guideline range determined by the court

. Mot. to Enforce, Attach. C (“Plea Agreement”) at 4-5 (emphasis added).
II. Schmidt indicates that he intends to a ppeal the district court’s imposition of the Search Condition. 1 In light of Schmidt’s attempt to appeal a condition of his supervised release, the govern ment filed a motion to enfor ce the appeal waiver in his Plea Agreement under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating a motion to enforce a waiv er, we consider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waiv ed 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, Schmid t does not argue that his waiver was not

1 Smith says that he plans “to challenge the statutory authority for imposition of the special condition of superv ised release,” and “will ask this Court to hold that the warrantless-search condition of supervised re lease is unlawful in his case.” Aplt. Resp. to Mot. to Enforce at 4-5.- 4 - knowing and voluntary. We therefor e need not address that issue. United States v.
Porter , 405 F.3d 1136, 1143 (10th Cir. 2005). Rather, Schmidt contends that his appeal falls outside the scope of the appeal waiver, or alternativel y, that enforcement of his waiver would result in a miscarriage of justice. See Hahn , 359 F.3d at 1325. A. Schmidt first argues his appeal of the Search Condition falls outside the scope of his appeal waiver. We have held that “contract principles govern plea agreements.” Id. at 1324-25. Moreover, we stric tly construe an appeal waiver and any ambiguity in the plea ag reement against the governme nt and in favor of the defendant’s appeal rights. Id. at 1325. Schmidt does not dispute that he waived his right to appeal “conditions of supervised release.” Plea Ag reement at 4. But he poi nts to the exception in his waiver allowing him to appeal his sentence “to the extent, if any, the court departs upwards from the applicable sentencing gui deline range determined by the court.” Id. 4-5. He maintains that the Search Condition falls under this exception because that condition is above the appli cable sentencing guideline range. 1. The government responds that the terms “guideline range” and “applicable sentencing guideline range,” 2 have the same meaning in Schmidt’s appeal waiver as

2 Schmidt does not dispute the governme nt’s contention that these terms are synonymous.- 5 - they do when used in the Gu idelines. The government contends that these terms refer solely to the imprisonment range that is calculated based on the Guidelines Sentencing Table, after de termination of the defendant ’s total offense level and criminal history category. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table) (2014). The government cites several instances in which “applicable guideline range” is used in the Guidelines w ith reference to the Sentenci ng Table, and also points to the definition of that term for purposes of a sentence reduction under 18 U.S.C. § 3582(c)(2). But the government’s exampl es merely confirm that, when the issue relates to a defendant’s term of imprisonment, the term “applicable guideline range” refers to the imprisonment range produced by applying the Sentencing Table. Although we agree with the government that the Guidelines use the term “guideline range” primarily in the context of impris onment sentences, we note that they also refer to a “guideline range” in relation to fines. See, e.g. , U.S.S.G. § 5E1.2(c); § 8A1.2(b)(2)(G); see also United States v. Smith , 919 F.2d 123, 125-26 (10th Cir. 1990) (vacating fine that exceeded the guideline range). 2. Schmidt disagrees that the terms “guideline range” and “applicable sentencing guideline range,” as used in his appeal wa iver, are limited to the imprisonment range determined by the court. He maintains that he reserved th e right to appeal any aspect of his sentence, including a condition of s upervised release, that is above the guideline range. Schmidt does not base hi s construction of the terms “guideline- 6 - range” and “applicable sentencing guidelin e range” on how they are used in the Guidelines. Indeed, while th e Guidelines refer to a “ra nge” of terms of supervised release that a court may impose, see U.S.S.G. § 5D1.2, Appl . n.6, Schmidt does not point to any reference in the Guidelines to a “guideline range” in relation to conditions of supervised release, nor have we found one. Instead, Schmidt argues that “guideline range” has the same meaning in his appeal waiver as it does in 18 U.S.C. § 374 2(a)(3). Section 374 2(a)(3) authorizes a defendant to appeal his sentence if it is greater than the se ntence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or superv ised release that the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release und er section 3563(b)(6) or (b)(11) than the maximum esta blished in the guideline range

. 18 U.S.C. § 3742(a)(3) (empha sis added). Schmidt notes that § 3742, which is referenced in his appeal waiv er, clearly uses the term “ guideline range” in relation to certain conditions of supervised release. Th erefore, that same te rm as used in his waiver also extends to conditions of superv ised release, meaning that he can appeal the Search Condition if it is above the guideline range. We agree that § 3742(a)(3) contemplates the existence of a “guideline range” with respect to certain conditions of supe rvised release, speci fically those imposed under 18 U.S.C. § 3563(b)(6) (relating to refraining from frequenting certain places or associating with certain people), or (b)(11) (relating to community corrections- 7 - facilities and programs). Ne ither of those subs ections, however, is relevant to the Search Condition that Schm idt intends to appeal. But even if we assume for purposes of the government’s motion that Schmidt’s construction of the appeal waiver is co rrect—that it permits him to appeal any condition of supervised release if the di strict court “depart[ ed] upwards from the applicable sentencing guidelin e range determined by the c ourt,” Plea Agreement at 5 —he has not shown that this exception to hi s waiver applies by demonstrating (1) an applicable sentencing guideline range, (2) de termined by the court in his case, and (3) from which the court departed upwards. Schmidt contends that the district c ourt departs upwards from the applicable sentencing guideline range when it imposes “a more limiting condition of . . . supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range.” Aplt. Resp. at 11 (quoting 18 U.S.C. § 3742(c)(3)). Without addressing the statute’s reference to partic ular subsections of § 3563, neither of which pertains to the Search Condition, Schmidt concludes that he therefore reserved the right to appeal any superv ised release condition that is stricter than the conditions listed in the Guidelin es. He acknowledges that the Guidelines permit a court to impose the Search Condition in appropriate circumstances. See U.S.S.G. § 5D1.3(b), (d)(7)(C). But he maintain s that the Search Condition is not authorized by the Guidelines in his case. This is so because, accordi ng to Schmidt, the Search Condition involves a “greater de privation of liberty than is reasonably necessary for- 8 - the [enumerated] purposes” and is “[in]c onsistent with [the] pertinent policy statements issued by th e Sentencing Commission.” Id. § 5D1.3(b)(2). Schmidt’s contentions abandon all pret ense of identifying a “guideline range ” that applies to conditions of supervised release. Rather, he argues (as he would in his merits appeal) that the district court erre d in construing the Guidelines to permit the imposition of the Search Condition. But wh ether a court has appr opriately applied a particular guideline does not equate with the entirely se parate issue whether it departed upwards from an app licable sentencing guideline range . Ultimately, Schmidt’s contentions fail to identify a “sentencing guideline range” applicable to conditions of supervis ed release, or point to any place in the record where the district c ourt determined such a rang e and then departed upward from it. We see no such fi ndings in the sentencing tran script. Schmidt has not demonstrated that his appeal of the Sear ch Condition falls outside the scope of his appeal waiver.
B. Schmidt argues alternatively that enforcem ent of his appeal waiver will result in a miscarriage of just ice because the Search Co ndition exceeds the statutory maximum. See Hahn , 359 F.3d at 1327 (holding enforcement of an appeal waiver results in a miscarriage of justice where the sent ence exceeds the statutory maximum). The burden rests with the defe ndant to demonstrate a miscarriage of justice as a basis for an exception to enforcement of his appeal waiver. See United- 9 - States v. Johnson , 756 F.3d 1218, 1221 (10th Cir. 2014). Here, Schmidt’s burden is even heavier because he did not argue in th e district court that his sentence exceeded the statutory maximum. See id. (applying plain error anal ysis where the defendant failed to raise her gender-b ias miscarriage-of-justice i ssue in district court). 3 Aside from pointing to another appeal in which he claims the same is sue will be decided, Schmidt makes no effort to support his asser tion. He therefore fails to show plain

error. See id. at 1222 (listing factors defendant mu st establish to demonstrate plain error).
III. Because Schmidt fails to show that his appeal falls outside the scope of his appeal waiver or demonstrate that enfo rcement of the waiv er will result in a miscarriage of justice, we grant the government’s moti on to enforce his appeal waiver and dismiss his appeal. Entered for the Court Per Curiam

3 Schmidt did not argue in his se ntencing memorandum that the Search Condition exceeded the statutory maximum, nor did he object to the Search Condition after the district re ndered its sentencing decision to include that condition.