UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CHAD RYAN HUNTSMAN, 

 Defendant - Appellant. 

No. 17-4031 

(D.C. No. 2:15-CR-00645-TS-1) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges. 

_________________________________ 

We dismiss the appeal of Defendant Chad Ryan Huntsman because his plea 

agreement waived his right to challenge his below-guidelines sentence. 

In November 2015 a grand jury indicted Defendant on one count of producing 

child pornography, see 18 U.S.C. § 2251(a), and one count of possessing child pornography, see 18 U.S.C. § 2252A(a)(5)(B). The following August he entered into a plea 

agreement with the government. Under the agreement Defendant would plead guilty to 

 

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

unanimously that oral argument would not materially assist in 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judgment is not binding precedent, except under the doctrines of law of the 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 

November 24, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

the first count, the government would dismiss the second count, and the government 

would recommend that his prison term be 240 months. In addition, Defendant waived his 

right to appeal. Paragraph 8 of the agreement states: 

I know that 18 U.S.C. § 3742(a) sets forth the circumstances 

under which I may appeal my sentence. However, fully understanding my right to appeal my sentence, and in consideration of the concessions and/or commitments made by the 

United States in this plea agreement, I knowingly, voluntarily 

and expressly waive my right to appeal as set forth in paragraph 12 below. 

R., Vol. 1 at 18 (emphasis added). And Paragraph 12(e)(1) states: 

Fully understanding my limited right to appeal my sentence, 

as explained above in paragraph 8, and in consideration of the 

concessions and/or commitments made by the United States 

in this plea agreement, I knowingly, voluntarily, and expressly 

waive my right to appeal any sentence imposed upon me, and 

the manner in which the sentence is determined, on any of the 

grounds set forth in 18 U.S.C. § 3742 or on any ground whatever, except I do not waive my right to appeal (1) a sentence 

above the maximum penalty provided in the statute of conviction as set forth in paragraph 2 above [i.e., 18 U.S.C. § 2251]; 

and (2) a sentence above the high-end of the guideline range 

as determined by the district court at sentencing, or, in the 

event that no such determination is made by the district court, 

a sentence above the high-end of the guideline range as set 

forth in the final presentence report. 

Id. at 19 (emphasis added). 

The presentence investigation report prepared by the probation office calculated a 

total offense level of 43 and a criminal-history category of I, resulting in an advisory 

guidelines sentence of life imprisonment. But because the statutory maximum term for 

Defendant’s offense is 30 years, the guidelines range dropped to 30 years. 

In a presentencing filing Defendant referred to the need for sentencing consistency 
3 

and observed that similar defendants had received 240-month (20-year) sentences. And 

at the sentencing hearing itself, his counsel reemphasized the importance of consistency 

and noted that “in the last two or three cases I’ve had with this Court, we’ve gone between 20 and 25 years.” R., Vol. 3 at 18. Also, in accordance with the plea agreement, 

the government stated at the hearing that it believed a 240-month sentence was appropriate. The district court, however, asked the government why Defendant should receive a 

lower sentence than those given to two other defendants (Lyman Black and Brenton Andrews) who had both pleaded guilty to producing child pornography under plea agreements setting the sentence at 300-month (25-year) prison terms.1

 Defendant neither objected to the question nor responded to it. The government pointed to three mitigating 

factors: that Defendant had previously suffered a brain injury, had Asperger’s syndrome, 

and had made “some earnest attempts to help the government early in this case to find 

other perpetrators of the same crime.” Id. at 27. The court agreed that Defendant was 

distinguishable from Black and Andrews and sentenced Defendant to 270 months (22.5 

years). 

Defendant’s sole contention on appeal is that the district court “erred in basing 

[Defendant’s] sentence on materials outside of the record [the sentences of Black and 

Andrews] without first notifying [him] of its intent to use unrelated, non-case specific 

materials in committing him to federal prison.” Aplt. Br. at 1. But this argument is 

barred by Defendant’s appeal waiver. We determine whether an appeal waiver is valid 

 

1

 We grant Defendant’s motion to supplement the appellate record to include the plea 

agreements for Black and Andrews. 
4 

and applicable by considering “(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.” United States v. Garcia-Ramirez, 778 F.3d 856, 857 (10th Cir. 2015) 

(internal quotation marks omitted). Defendant does not dispute that the first two elements are satisfied. His only argument concerns the miscarriage-of-justice prong. 

It is a defendant’s burden to show that an appeal waiver causes a miscarriage of 

justice. See United States v. Johnson, 756 F.3d 1218, 1221 (10th Cir. 2014). An appeal 

waiver causes a miscarriage of justice “[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with 

the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds 

the statutory maximum, or [4] where the waiver is otherwise unlawful.” Id. at 1219 

(brackets in original). Defendant, however, rests only on a general assertion that 

“[e]nforcing the waiver would be a miscarriage of justice.” Aplt. Reply Br. at 6. We are 

not persuaded. Defendant points to none of the four miscarriage options as being applicable, and clearly none apply. Nor was there anything close to unfairness when the district court challenged his assertion that similar defendants had received sentences of 240 

months. 
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We DISMISS the appeal and GRANT defendant’s motion to supplement the record. 

Entered for the Court 

Harris L Hartz 

Circuit Judge