Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
United States of America v. JESSE MANQUAN YARCLAY
Case Number: 19-6174
Judge: Joel M. Carson III
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Denver, CO - Criminal defense lawyer represented defendant with a bank fraud charge.
Defendant used stolen identities and stolen bank account information to
defraud unsuspecting victims of over $95,000. In a few short months, Defendant
cashed twenty-four counterfeit checks at five banks on the accounts of eighteen
payors under the stolen identities of eight payees.
Liberty National Bank in southwestern Oklahoma knew Defendant engaged in
this activity. It even posted his picture at every teller station in every branch. When
Defendant entered a Liberty National Bank branch one afternoon, a teller recognized
him as he tried to cash a fraudulent check. The teller notified the bank’s president,
Mark Henry (“Henry”), who went to confront Defendant. Defendant quickly exited
the building and Henry followed. Outside, Henry confronted him, and Defendant
said something menacing in return. Feeling threatened, Henry immediately went
back in the bank. Law enforcement arrested Defendant the next day.
A grand jury indicted Defendant with one count of conspiracy to commit bank
fraud, five counts of bank fraud, three counts of aggravated identity theft, and one
count of being a felon in possession of a firearm. Defendant entered a written plea
agreement, pleading guilty to bank fraud in violation of 18 U.S.C. § 1344. In his plea
agreement, Defendant agreed to waive his right to appeal the district court’s sentence
and the manner in which the district court determined that sentence. But Defendant
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 2
preserved his right to appeal the sentence’s substantive reasonableness if the court
imposed a sentence exceeding the Guidelines.
The Presentence Investigation Report (“PSR”) noted the statutory provision
allowed for a 30-year maximum imprisonment term. The United States Sentencing
Guidelines (“Guidelines”) calculation recommended an imprisonment range of 41
months to 51 months based on Defendant’s total offense level and criminal history
category. At sentencing, the district court heard testimony related to Defendant’s
objections to the PSR. It then made Federal Rule of Criminal Procedure 32(i)(3)
findings and adopted the PSR’s factual findings for all sentencing-related purposes.
After arguments from both parties, the district court analyzed Defendant’s case under
the factors set forth in 18 U.S.C. § 3553(a) and varied upward, sentencing Defendant
to 72 months’ imprisonment. Defendant now appeals the district court’s upward
variance from the Guideline range and the sentence’s substantive reasonableness.
We review the enforceability of an appeal waiver within a plea agreement de
novo. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). We
review the reasonableness of all sentences for an abuse of discretion. United States
v. Balbin-Mesa, 643 F.3d 783, 786–87 (10th Cir. 2011). An abuse of discretion
occurs if the district court’s judgment is arbitrary, capricious, whimsical, or
manifestly unreasonable. Id. at 787.
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 3
Defendant contends the district court erred by enhancing his sentence because
his crime involved ten or more victims and because he used one means of
identification to produce another. He also argues that the district court’s aboveGuideline sentence was substantively unreasonable. We first determine whether
Defendant’s waiver is enforceable and precludes his sentencing enhancement
argument. Concluding it does, we then address whether the district court imposed a
substantively reasonable sentence.
We employ a three-pronged analysis when determining enforceability of an
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).
First, we consider “whether the disputed appeal falls within the scope of the waiver
of appellate rights.” Id. Second, we look at whether Defendant “knowingly and
voluntarily waived his appellate rights.” Id. And third, we evaluate “whether
enforcing the waiver would result in a miscarriage of justice.” Id.
To determine scope, we strictly construe the appeal waiver reading any
ambiguities against the government and in favor of Defendant’s appellate rights. Id.
Defendant does not directly dispute whether the appeal falls within the scope of the
appellate waiver. Instead, he seeks to make an end run around the appeal waiver by
At his sentencing, Defendant objected to the PSR and raised arguments about
a two-level enhancement application contesting whether his crime involved ten or
more victims. Because we find Defendant’s appellate waiver enforceable, we will
not address that argument.
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 4
suggesting we should evaluate the manner in which the court calculated the
Guideline range as part of our substantive reasonableness analysis. Appellant Reply
Br. at 2. Defendant contends that we may reach the calculations because “the line
between procedural and substantive reasonableness is blurred.” See id. at 3 (citing
United States v. Barnes, 890 F.3d 910, 917 (10th Cir. 2018)). According to
Defendant, we should not divorce the substantive reasonableness from the procedure
because the procedure created the unreasonableness. We need not divorce the two
because Defendant did so himself when he agreed to the waiver. The waiver states,
“[D]efendant waives his right to appeal his sentence as imposed by the Court,
including . . . the manner in which the sentence is determined.” ROA Vol. I at 55.
Strictly construing the plea agreement, Defendant’s appeal falls within the scope of
the appellate waiver.
Under prong two we determine whether Defendant knowingly and voluntarily
waived his right to appeal. Hahn, 359 F.3d at 1325. We first consider whether
Defendant’s plea agreement contained language stating he entered the agreement
knowingly and voluntarily. Id. Second, we review the record to see if an adequate
Federal Rule of Criminal Procedure 11 colloquy exists. Id. Again, Defendant does
not argue he did not enter the plea agreement knowingly and voluntarily. The record
establishes that he did.2
And the district court conducted a thorough Rule 11
colloquy during the plea proceedings. So the appellate waiver satisfies prong two.
Defendant’s waiver of right to appeal in his plea agreement contains a
“knowing and voluntary” clause. ROA Vol. I at 55.
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 5
Prong three—our last consideration—asks us to determine if enforcing the
appellate waiver will lead to a miscarriage of justice. Id. at 1327. We consider
certain exceptions to appellate waivers such as when (1) the district court “relie[s] on
an impermissible factor such as race”; (2) ineffective assistance of counsel occurs
during waiver negotiations; (3) “the sentence exceeds the statutory maximum”; or (4)
“the waiver is otherwise unlawful.” United States v. Elliot, 264 F.3d 1171, 1173
(10th Cir. 2001). Defendant does not argue a miscarriage of justice occurred, and the
record lacks evidence that any waiver exceptions apply. So because the appeal falls
within the scope of the waiver to which Defendant knowingly and voluntarily agreed,
we conclude his appellate waiver is enforceable on his Guideline-calculation
In reviewing a sentence for substantive reasonableness, we look at the totality
of the circumstances.3
Balbin-Mesa, 643 F.3d at 787. We afford the district court
substantial deference and determine whether it imposed a reasonable sentence under
the circumstances and given 18 U.S.C. § 3553(a) factors. Id. at 788. But an abuse of
discretion occurs when a decision stems from a clear error of law, fact, or judgment.
United States v. McComb, 519 F.3d 1049, 1054 (10th Cir. 2007).
Defendant raises only substantive reasonableness on appeal. The Guidelines
issue pertains to procedural reasonableness, which Defendant waived.
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 6
Defendant asserts the district court’s upward variance was not substantively
reasonable. Defendant argues the district court erred by emphasizing his criminal
record—including misplaced emphasis on a fourteen-year-old Texas conviction for
aggravated assault on a public servant. Defendant contends the Guidelines
considered this offense because the PSR imposed three criminal history points
accounting for the whole of Defendant’s criminal past. Defendant also asserts that
the district court ordered restitution to all institutional victims and thus already
addressed the repeated nature of his fraudulent conduct. Defendant thus argues that
the Guidelines range accounted for all of his conduct, and any upward variance by
the district court was an abuse of discretion. We disagree.
Defendant relies on two cases for his argument that the Guidelines already
accounted for his conduct, but neither is persuasive. First, Defendant relies on
United States v. Hanson, 264 F.3d 988 (10th Cir. 2001). Defendant asserts that, like
the defendant in Hanson, imposing three criminal history points based on a past
conviction means the court already considered his criminal conduct. Id. at 990. But
Defendant’s misreads Hanson. In Hanson, the government proposed an upward
variance for the defendant’s second-degree murder plea deal based on premeditation.
Id. The district court denied the proposed upward variance based on premeditation
reasoning the Guidelines already considered the question of premeditation by setting
different offense levels for first-degree and second-degree murder. Id. at 995. We
affirmed the district court, reasoning first-degree murder included premeditation as
part of the offense elements and second-degree murder did not. Id. at 996. We
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 7
emphasized that the Guidelines considered premeditation because the offense conduct
between the two crimes contained different elements. Id. And because first-degree
murder encompassed premeditation, an upward variance for a second-degree murder
plea based on premeditation undermined the Guidelines offense level distinctions.
See id. And our precedent foreclosed the option to consider premeditation on a
second-degree murder plea because the Guidelines distinguished between the two
crimes by assigning different offense levels. Id. at 995–96 (citing United States v.
Kelly, 1 F.3d 1137, 1140–41 (10th Cir. 1993)). Unlike the Hanson defendant,
Defendant’s upward variance did not involve distinct offense conduct considerations
under the Guidelines.
Defendant also relies on our decision in United States v. Pinson, where despite
some concern for the large size of the variance, we upheld an upward variance for a
mentally ill defendant based on an effort to protect the public. 542 F.3d 822, 835–36
(10th Cir. 2008). Defendant contends that his mental and emotional problems
account for his volatile nature and do not justify the upward variance. In Pinson we
cautioned against increasing a defendant’s incarceration time because of his mental
illness. Id. at 838. But we recognized that even in such situations the district court
has wide discretion when applying the § 3553(a) factors. Id. at 838–39 (concluding
that we defer to the district court even when a factor may be discouraged by the
Guidelines). Here, the district court did not only rely on Defendant’s mental or
emotional problems. Instead, it broadly applied the § 3553(a) factors in determining
Defendant’s sentence. So Defendant’s reliance on Pinson is misplaced.
Appellate Case: 19-6174 Document: 010110545033 Date Filed: 07/07/2021 Page: 8
Ultimately, we afford the district court deference in sentencing because of its
familiarity with the facts and circumstances of the case. See McComb, 519 F.3d at
1053. Here, the district court anchored its upward variance in a full analysis of the
§ 3553(a) factors. The district court determined that despite the nonviolent nature of
Defendant’s crime, some of Defendant’s relevant conduct involved threats of
violence toward an institutional victim’s bank officer. The district court found that
Defendant’s overall conduct demonstrated instability and violent propensities. The
district court also emphasized that it imposed a sentence not greater than necessary to
achieve the statutory objectives and expected that most judges might impose a
sentence of ten years or more. In sum, the district court carefully noted that
Defendant’s violent criminal history, lack of respect for the law, and repetitive nature
of his fraudulent conduct all contributed to its general determination that Defendant
Outcome: For these reasons, we conclude the district court did not abuse its discretion by
imposing an upward variance.