UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BRYCE D. DRAPER, Defendant - Appellant. No. 20-3130 (D.C. No. 2:15-CR-2 0035-JWL-JPO-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , HOLMES , and PHILLIPS , Circuit Judges.

________________ _________________ This matter is before the court on th e government’s motion to enforce the appeal waiver in Bryce D. Draper’s pl ea agreement. We grant the government’s motion and dismiss the appeal. BACKGROUND In 2016, Draper pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) . His plea agreement included a broad appeal waiver, which indicated he “knowingly and voluntarily waive[d] any right to appeal . . . any

* This panel has determined unanim ously that oral argument would not materially assist in the dete rmination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cas e is therefore ordered submitte d without oral argument. This order and judgment is not binding pre cedent, except under the doctrines 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 

### December 9, 2020 Christopher M. Wolpert Clerk of Court2 matter in connection with this prosecution, his conviction, or the components of the sentence . . . , including the length and conditi ons of supervised re lease, as well as any sentence imposed upon a revocation of s upervised release.” Mot. to Enforce attach. B at 6. The district court se ntenced him to 30 months’ imprisonment, followed by 3 years’ supervis ed release. In May 2017 , Draper was released from prison based on time served and began hi s term of supervised release. In 2018, the district court determined that Draper violated several conditions of his supervised release. The court revoked his superv ised release and sentenced him to 18 months’ imprisonment, followed by 1 year of supervised release. Draper appealed, and we affirmed. United States v. Draper , 768 F. App’x 828, 830 (10th Cir. 2019). In 2020, after Draper completed his additional imprisonment, the district court found that he ag ain violated conditions of hi s supervised release. The court revoked his supervised release and sentenced him to 21 months’ imprisonment, with no additional supervised release. Draper appeals both his revocation and the sentence imposed. DISCUSSION The government has moved to enforce th e appeal waiver in Draper’s plea agreement under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Under Hahn , we consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate right s; (2) whether the de fendant knowingly and voluntarily waived his appellate rights; a nd (3) whether enforcing the waiver would result in a misca rriage of justice.” Id. at 1325. Draper, through counsel, challenges3 only the first two factors, so we do not address the miscar riage-of-justice factor. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that this court need not address a Hahn factor that the defe ndant does not contest). A. Scope of the Waiver Draper first argues that his appeal fr om his second revocation of supervised release does not fall within the scope of his appeal waiver. We disagree. “When construing an appellate waiver, we apply well-established contract principles and examine the plai n language of the agreement.” United States v. Taylor , 413 F.3d 1146, 1151 (10th Cir. 2005) (internal quotation marks omitted). “[W]e strictly construe the scope of the appellate waiver and interpret any ambiguities against the Government and in favor of a defe ndant’s appellate rights.” Id. at 1151-52 (internal quotation marks, br ackets, and ellipsis omitted). “But we do not hesitate to hold a defe ndant to the terms of a lawful plea agreement.” United States v. Sandoval , 477 F.3d 1204, 1206 (10th Cir. 2007) (internal quotation marks omitted). Draper contends his waiver does not reach the present appeal because revocation of supervised release “is a separate post-convic tion proceeding that provides a separate right of appeal.” Re sp. at 5 (internal quotation marks omitted). But as we have recognized, “where a plea agreement includes mo re precise language describing the rights waived by the defendant,” a waiver can extend beyond a direct appeal from a conviction and can enco mpass post-conviction proceedings. United States v. Lonjose , 663 F.3d 1292, 1300 n.9 (10th Cir. 2011).4 Draper’s waiver included pr ecise language and specified that he “waive[d] any right to appeal . . . any matter in connecti on with this prosecution, his conviction, or the components of the sentence . . . as well as any sentence imposed upon a revocation of supervised release .” Mot. to Enforce attach . B at 6 (emphasis added). We have recognized that a waiver with th is exact language encompasses an appeal from the revocation of supervised release. See United States v. Porter , 905 F.3d 1175, 1180 (10th Cir. 2018) (observing that we have en forced a waiver in an appeal from the revocation of supervised release wh ere the “waiver in [the] original plea agreement” specified the defendant “‘waive[d] any right to appeal . . . the sentence to be imposed herein, including the length a nd conditions of supervised release, as well as any sentence imposed upon a r evocation of supervised release ’” (internal quotation marks omitted)). 1 By its plain terms and consistent with Lonjose and Porter , the appeal waiver in Draper’s plea agreement cove rs the appeal of a senten ce following revocation of supervised release. Draper argues, however, that his second revocation of supervised release is too attenuated from his orig inal judgment and the plea agreement containing the waiver. See Resp. at 5-7 (noting “[t]he July 2020 judgment is not the revocation of the supervised release imposed with the se ntence for the 2016 conviction,” and contending “t he appeal waiver from the December 2016 agreement

1 We declined to en force the waiver in Porter because the waiver did not include “specific language” to bar an a ppeal from the revocation of supervised release and the parties could have “incl ude[d] sentences upon revocations within the scope of the waiver” if they ha d so desired. 905 F.3d at 1180.5 does not cover this third-round sentencing pr oceeding”). But he cites no authority to support this proposition, a nd we are aware of none. Draper plainly waived his right to appeal “any sentence imposed upon a revocation of supervised releas e,” Mot. to Enforce attach. B at 6, not merely, as he alleges, the initial “imposition of superv ised release” and “the revocation of that supervised release,” Resp. at 7 (emphasis added). Accord ingly, we conclude that Draper’s appeal from his second revocation of supervised release falls within the scope of his appeal waiver.
B. Knowing and Voluntary Waiver Draper also argues he did not knowingl y and voluntarily waive his appeal rights. We disagree. For this Hahn factor, we look to the language of the plea agreement and the Federal Rule of Criminal Procedure 11 pl ea colloquy to assess whether a waiver of appellate rights was knowing and voluntary. See United States v. Rollings , 751 F.3d 1183, 1188 (10th Cir. 2014). “[E]ither the express langua ge of the plea agreement, if sufficiently clear, detailed, and comprehens ive, or the probing inquiry of a proper Rule 11 colloquy could be enough to c onclude the waiver was knowing and voluntary. But the synerg istic effect of both will often be conclusive.” United States
v. Tanner , 721 F.3d 1231, 1234 (10th Cir. 2013) (per curiam). The plea agreement, which Draper signed, explicitly states that he “knowingly and voluntarily waive[d] any right to a ppeal . . . any sentence imposed upon a revocation of supervised releas e.” Mot. to Enfor ce attach. B at 6. At the change-of-6 plea hearing, the prosecuto r read verbatim that pa ssage from the agreement, id. attach. A at 15, and Draper and his couns el confirmed that wa s their “understanding of the plea agreement,” id. at 16. During the Rule 11 colloquy, Draper acknowledged that he had “gone over” the appeal waiver with his attorney and that he wanted the court to approve the waiver “as part of [his] plea agreement.” Id. at 18. He also acknowledged he “could be imprisoned for an additional term of imprisonment” if he “violate[d] the conditions of [his] supervised release, a nd it’s revoked or taken away from [him].” Id. at 9. 2 Finally, Draper indicated he understood that, subject to exceptions stated in the waiv er, he was “giving up any right [he] might have to appeal anything having to do with [his] case .” Id. at 18 (emphasis added). Draper contends that if, as we concluded above, his appeal falls within the scope of his waiver, “[n]othing in the pl ea colloquy suggests he knew he might be waiving that scope of appeals. ” Resp. at 7. He alleges that “[a]t most[,] the colloquy shows he was aware that he could be senten ced to supervised release[] and . . . was waiving the right to appeal the terms of that supervised release .” Id. (emphasis added). But the waiver, as stated in the plea agreement and confirmed during the colloquy, is not so limited. Instead, it clearly indicates Dr aper knowingly and voluntarily waived his right to appeal, among other things, “ any sentence imposed
upon a revocation of supervised release.” Mot. to Enforce attach. B at 6 (emphasis

2 At sentencing, Draper, through counsel , “concur[red] with [the prosecutor’s] request for the three years of supervised re lease.” Mot. to Enfo rce attach. C at 15.7 added). We are not persuaded that his waiver as to “the future chain of supervised release and revocations” was “i nadvertent[].” Resp. at 7. 3 Accordingly, we conclude that Drap er has failed to carry his burden of demonstrating that he did not knowingly an d voluntarily waive hi s appeal rights. CONCLUSION Draper’s appeal falls with in the scope of his appeal waiver, and he knowingly and voluntarily waived his appellate right s. We therefore grant the government’s motion to enforce Draper’s appeal waiver and di smiss this appeal.

Entered for the Court Per Curiam

3 To the extent Draper suggests his waiver was not kno wing and voluntary because it subjected him to an unreviewable endless cycle of supervised release and revocations, we note that the “f uture chain” he describes, Re sp. at 7, was at all times finite and governed by statute. See United States v. Hernandez , 655 F.3d 1193, 1198 (10th Cir. 2011) (noting th at 18 U.S.C. § 3583(h) “for ecloses the possibility of endless cycles of prison and supervised release” and that even when a defendant has had multiple revocations of supervised rel ease, the amount of supervised release a district court can impose in connection with any revocati on is limited by § 3583(h) to “the term of supervised rele ase authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervis ed release” (emphasis omitted)); see also United States v. Collins , 859 F.3d 1207, 1210 (10th Cir. 201 7) (stating “as to not only the first but also second and s ubsequent revocations, § 3583 (e)(3) imposes a statutory maximum prison term based on the original criminal offense for which the defendant was convicted”).