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United States v. Vanderwerff

United States Court of Appeals, Tenth Circuit

June 10, 2015

TIMOTHY JOHN VANDERWERFF, Defendant-Appellant. BLAIN D. MYHRE, Amicus Curiae

Appeal fro the United States District Court for the District of Colorado. (D.C. No. 1:12-CR-00069-JLK-1).

O. Dean Sanderford, Assistant Federal Public Defender, Denver, Colorado (Virginia L. Grady, Interim Federal Public Defender, Denver, Colorado, with him on the brief), for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney, Denver, Colorado (John F. Walsh, United States Attorney, Denver, Colorado, with him on the brief), for Plaintiff-Appellee.

Blain David Myhre, Blain Myhre, LLC, Englewood, Colorado, as Amicus Curiae.

Before LUCERO, HARTZ, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.

Page 1267

Defendant-Appellant Timothy Vanderwerff appeals from his conviction and sentence for receipt of child pornography, arguing that the district court erred in rejecting his initial (first) plea agreement with the government because it contained an appellate waiver. The government agrees with Mr. Vanderwerff, as does an appointed amicus counsel, and all parties urge reversal and remand for re-sentencing. Having thoroughly considered the matter, we also agree that such relief is appropriate. Specifically, we conclude that the district court's rejection of Mr. Vanderwerff's plea agreement was premised on legally erroneous and irrelevant considerations; consequently, its action constituted an abuse of discretion. Exercising our jurisdiction under 28 U.S.C. § 1291, we reverse and remand this case, instructing the district court to vacate its judgment and sentence, to permit Mr. Vanderwerff to withdraw his guilty plea, and to conduct further proceedings not inconsistent with this opinion.


In February 2012, a federal grand jury indicted Mr. Vanderwerff for three child-pornography-related offenses in the United States District Court for the District of Colorado. Count 1 charged Mr. Vanderwerff with receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and Counts 2 and 3 charged him with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Mr. Vanderwerff and the government entered into a plea agreement. Under the agreement, Mr. Vanderwerff would plead guilty to Count 2 and the government would dismiss Counts 1 and 3. Mr. Vanderwerff also promised not to seek a departure or variance under the United States Sentencing Guidelines Manual (" U.S.S.G." or " the Guidelines" ) or to request a sentence of less than five years. For its part, in addition to offering to dismiss Counts 1 and 3, the government committed itself to submitting a motion to the district court to grant Mr. Vanderwerff credit for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 if Mr. Vanderwerff's behavior warranted the adjustment. Most relevant to the instant appeal, the plea agreement included a provision by which

Page 1268

Mr. Vanderwerff waived his right to appeal.[1]

As a result of this initial plea agreement, Mr. Vanderwerff faced a statutory sentencing range of zero to ten years of imprisonment. See 18 U.S.C. § 2252A(b)(2) (providing for a sentence of " not more than 10" years for violating § 2252A(a)(5), as alleged in Count 2).

At an initial change-of-plea hearing, the district court declined to either accept or reject the plea. After listening to arguments from both parties in favor of the plea, the district court cited an ostensible " tectonic shift in our jurisprudence" brought about by the Supreme Court's decision in Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). R., Vol. III, at 10 (Change-of-Plea Hr'g Tr., dated Apr. 10, 2012). The court found that Lafler suggested that a sentencing court should be " a participant in the plea-bargaining process" and renounce " the judicial branch['s prior] . . . Pontius Pil[ate] attitude about plea bargains." Id. at 10-11. The district court further found that the ultimate sentence should only have as its predicate " the criteria listed in [18 U.S.C. § ] 3553" and suggested that Mr. Vanderwerff's plea agreement--which, notably, contained an appellate waiver--might violate those criteria. Id. at 11.

The district court then offered some thoughts on plea bargaining in general, which it cautioned were not going to be " determinative" of its ruling but which constituted a " continuing concern." Id. at 11-12. In this regard, the district court opined as to " the significant disrepute that obsessive plea bargaining has in this country" and indicated that it had " to pay attention to that." Id. at 12.

The district court then returned to the subject of 18 U.S.C. § 3553(a)'s sentencing factors and specifically focused on the role those factors purportedly should play in its consideration of the propriety of the appellate waiver in Mr. Vanderwerff's plea agreement. Significantly, the court perceived a nexus between its task in accepting or rejecting appellate waivers and our court's responsibilities in reviewing trial judges' discretionary sentencing determinations under § 3553(a). In this regard, it stated:

One of the things that concerns me, deeply, is the language in some of the 10th Circuit cases, which suggests, to me, that the Judges on the 10th Circuit are not paying attention to their obligations in reviewing the decisions of Judges of the District Court. I have said that in the [ Aguirre] [2] case, [in] what is, I hope, a more diplomatic way than I just said it now. . . . [Section] 3553[] seems, to me, . . . A, exclusive; and B, determinative of whether or not a waiver can be accepted.

R., Vol. III, at 12-13 (emphasis added). In light of these considerations, the district court ordered the parties to submit supplemental briefs " on the application of the

Page 1269

[§ ] 3553 factors to this particular sentence of this particular case." Id. at 13.

After reviewing the parties' supplemental briefs, the district court rejected the plea agreement. The court began its ruling by noting the decrease in criminal trials and the growth in guilty pleas--phenomena that it bemoaned. Then, turning to the plea bargain at hand, the district court found the dismissal of Counts 1 and 3 in return for the guilty plea to Count 2 " not unconscionable" and concluded as a result that it was " appropriate to defer to prosecutorial discretion" regarding the charge bargain.[3] R., Vol. I, at 45 (Order, filed June 28, 2012). However, the district court rejected the appellate waiver as " unjustified." Id.

The court observed that " [i]n the wake of the Supreme Court's holding that the [Guidelines] are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), no circuit court has revisited the enforceability of appellate waivers." R., Vol. I, at 43. According to the court, " [s]entencing, post- Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment." Id. It thus reasoned that this post- Booker sentencing regime called for courts to proceed cautiously and selectively in approving appellate waivers:

The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre- Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.
Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions. . . . Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Id. at 44. The court ultimately concluded that Mr. Vanderwerff's waiver was not so justified.

The district court acknowledged the parties' view that our precedent generally supported the use of appellate waivers, inasmuch as we have found them beneficial to the criminal justice system and its various actors, but concluded that this general perspective on appellate waivers was " irrelevant to [its] determination of whether an appellate waiver is justified in the context of this case." Id. at 45. The court was similarly unimpressed with the litigants' " case-specific" explanations, id., for the waiver--which, notably, they made under the rubric of § 3553(a) because the court required them to do so. The court rejected the government's argument that Mr. Vanderwerff's appellate waiver evidenced his acceptance of responsibility and remorse because it " ignore[d] the nature of Mr. Vanderwerff's bargain," especially the significant benefit he was receiving " [i]n exchange for" the waiver. Id. at 46. Likewise, the court found unpersuasive the parties' argument that " the dismissal of charges 1 and 3 w[ould] result in a ...

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