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United States v. Holzer.

No. 21-1080.  D.Colo. Judge Briscoe. Plot to Bomb Synagogue—Special Conditions of Supervised Release—First Amendment—Appellate Waiver Provision of Plea Agreement.

April 25, 2022

Defendant promoted white supremacy ideology and racially and religiously motivated acts of violence through several social media accounts. An undercover FBI agent “friended” defendant through Facebook. Defendant subsequently disclosed to FBI agents his plans to bomb a synagogue.

A federal grand jury returned a three-count indictment against defendant and he pleaded guilty, pursuant to a written plea agreement, to (1) intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through force and the attempted use of explosives and fire, and (2) maliciously attempting to damage and destroy a synagogue by means of fire and explosives. The plea included a “waiver of appeal” section, through which defendant waived certain appeal rights. Defendant objected to special condition nine in the agreement, which prohibits him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy. The district court overruled the objection. It sentenced defendant to 235 months’ imprisonment to be followed by a 15-year term of supervised release and ordered him to comply with 11 special conditions of supervised release.

Defendant argued on appeal that special condition nine infringed on his First Amendment rights and was not supported by any particularized findings. A court deciding whether a criminal defendant has waived appellate rights in an enforceable plea agreement must determine 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. Here, defendant conceded that special condition nine falls within the scope of the waiver language but argued that the issue he sought to assert fell within the agreement’s waiver exception for a sentence exceeding “the maximum penalty provided in the statute of conviction.” The Tenth Circuit construed the term “maximum” to generally refer to something quantifiable. However, special condition nine is not capable of quantification, so the issues defendant sought to raise on appeal fell within the scope of the appellate waiver provision but not within the scope of the exception. Further, defendant did not dispute that he knowingly and voluntarily waived his appeal rights, and his situation is not among the four recognized instances in which a miscarriage of justice will result from enforcing the waiver.

The appeal was dismissed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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