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United States of America v. ALEXANDER CHRISTIAN MILES
Case Number: 20-6150
Judge: Entered for the Court
Before TYMKOVICH, Chief Judge, LUCERO and McHUGH, Circuit Judges.
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Denver, CO - Criminal defense lawyer represented defendant with a for transporting a minor across state lines with intent to engage in sexual activity contrary to state law charge.
In July 2001, Miles, then 43 years old, applied for a K-1 visa to bring his
Cambodian fiancée to the United States, misrepresenting her age as 18 years old
when he knew she was only 14. The visa was granted, and they moved to New York,
where they were married in December 2001. Miles then misrepresented his wife’s
age in an application for adjustment of status. In July 2002, they moved from New
York to Oklahoma. Miles was indicted shortly thereafter under 18 U.S.C. § 2423(a)
for transporting a minor across state lines with intent to engage in sexual activity
contrary to state law. He ultimately pleaded guilty to falsely stating his thenfiancée’s age in the K-1 visa application, in violation of 18 U.S.C. § 1001(a)(3). As
part of a plea agreement, the government agreed to dismiss the charge under
§ 2423(a). Miles, in turn, waived his right to “[a]ppeal or collaterally challenge his
guilty plea . . . and any other aspect of his conviction” as well as “his sentence as
imposed by the Court and the manner in which the sentence is determined, provided
the sentence is within or below the advisory guideline range determined by the Court
to apply to this case.” Mot. to Enforce attach. 1 at 5. The court imposed a sentence
of 5 years’ imprisonment and 3 years’ supervised release. Miles appealed the
imposition of sex-offender conditions, and we affirmed. United States v. Miles,
411 F. App’x 126, 127 (10th Cir. 2010).
Miles has since spent the past decade seeking post-conviction relief. He first
filed a 28 U.S.C. § 2255 motion, which the district court denied based upon the
collateral-challenge waiver in Miles’s plea agreement. We denied a certificate of
appealability (COA). United States v. Miles, 546 F. App’x 730, 731 (10th Cir. 2012).
After he was released from custody in 2013, Miles petitioned for a writ of coram
nobis. The district court again enforced the collateral-challenge waiver and denied
the petition. We affirmed. United States v. Miles, 553 F. App’x 846, 847 (10th Cir.
2014). Miles then filed a second petition for a writ of coram nobis, which the district
Appellate Case: 20-6150 Document: 010110446136 Date Filed: 12/02/2020 Page: 2
court denied based on the collateral-challenge waiver, the abuse-of-the-writ doctrine,
and a lack of merit. We affirmed based on the abuse-of-the-writ doctrine and did not
address the other grounds. United States v. Miles, 923 F.3d 798, 800-01 (10th Cir.
2019). Finally, in 2020, Miles filed a Motion for Clerical Error Correction and
Vacation of Conviction, contending, as he did in his prior filings, that his
misrepresentations about his wife’s age were immaterial. The district court again
denied the motion based on the collateral-challenge waiver, the abuse-of-the-writ
doctrine, and a lack of merit. Miles timely appealed.
The government has moved to enforce the appeal waiver in Miles’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 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.” Id. at 1325; see also United States v. Viera,
674 F.3d 1214, 1217 (10th Cir. 2012) (applying Hahn analysis to denial of § 2255
claim based on collateral-challenge waiver).
In his pro se response1
to the government’s motion, Miles contends only that
Because Miles is pro se, we liberally construe his filings but will not act as
his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Appellate Case: 20-6150 Document: 010110446136 Date Filed: 12/02/2020 Page: 3
his appeal does not fall within the scope of his appeal waiver.2
He argues that
because the recommended sentence under the Sentencing Guidelines was 0 to 6
months and because the district court imposed a sentence of 60 months, he is
“entitled to challenge both his conviction and his sentence on account of the District
Court’s upward variance.” Resp. at 6. But the exception to his waiver based on an
upward variance from the Guidelines applies only to challenges to his sentence, not
his conviction. See Mot. to Enforce attach. 1 at 5 (waiving the right to “[a]ppeal
[or] collaterally challenge . . . his sentence as imposed by the Court and the manner
in which the sentence is determined, provided the sentence is within or below the
advisory guideline range determined by the Court to apply to this case” (emphasis
added)); see also id. at 6 (“It is provided that defendant specifically does not waive
the right to appeal a sentence above the advisory guideline sentencing range
determined by the Court to apply to this case.” (emphasis added)). An upward
variance has no bearing on his waiver of his right to “[a]ppeal or collaterally
challenge his guilty plea . . . and any other aspect of his conviction.” Id. at 5.
Here, Miles plainly is challenging his conviction, not his sentence. See Resp.
at 3 (describing his current challenge as being based on a 2019 U.S. Senate Report,
which he alleges “provides newly available evidence that no reasonable fact finder
could have found him guilty of a material misrepresentation in violation of 18 U.S.C.
We therefore do not address the remaining two factors under Hahn—whether
the waiver was voluntary and whether enforcement would result in a miscarriage of
justice. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting
this court does not need to address a Hahn factor that the defendant does not contest).
Appellate Case: 20-6150 Document: 010110446136 Date Filed: 12/02/2020 Page: 4
§1001(a)(3)” (emphasis added)); id. at 9 (arguing the waiver does not bar him “from
insisting that his plea agreement be rescinded and his conviction reversed” (emphasis
added)). In fact, Miles admits he “has fully completed his sentence.” Id. at 8.
Accordingly, the exception to his appeal waiver does not apply, and this appeal “falls
within the scope of the waiver.” Hahn, 359 F.3d at 1325. We therefore enforce
Miles’s appeal waiver and grant the government’s motion to dismiss.
The government also requests that we impose filing restrictions on Miles due
to his pattern of abusive litigation. Miles opposes restrictions, first on the ground
that he “does not expect to burden the federal judiciary with future pleading.”3
at 19. But if true, then he can hardly complain about restrictions on future filings.
Miles also argues his claim of newly discovered evidence was “neither
disingenuous nor frivolous.” Id. But he fails to acknowledge that his claim was
barred by his collateral-challenge waiver and that his present appeal was barred by
the appeal waiver. He also fails to address his vexatious litigation history spanning
the past ten years, which the government aptly described in its motion, see Mot. to
Enforce at 12 (“Despite agreeing that he would not challenge his conviction
collaterally, including the current time, Dr. Miles has challenged his conviction
In his most recent appeal, however, this court found that Miles made
“knowing and material misrepresentations in [his] filings,” including his coram nobis
petition and supporting affidavit. Miles, 923 F.3d at 805 n.2. We thus directed the
Clerk to send copies of the opinion the State Bar of California, where Miles had been
licensed to practice law, and the medical boards of four states where he was licensed
to practice medicine so they could determine whether to take any disciplinary action.
Appellate Case: 20-6150 Document: 010110446136 Date Filed: 12/02/2020 Page: 5
collaterally on four occasions, claiming in each attack that the lies he told the INS
were immaterial. This Court rejected his argument twice on the merits and held on a
third occasion that his argument constituted an abuse of the writ.” (citations
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate circumstances.”
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Filing restrictions may
be imposed when: “(1) the litigant’s lengthy and abusive history is set forth; (2) the
court provides guidelines as to what the litigant must do to obtain permission to file
an action; and (3) the litigant received notice and an opportunity to oppose the
court’s order before it is instituted.” Id. (internal quotation marks omitted).
This court proposes to enjoin Miles from filing any further pro se filings with
this court that raise the same or substantially similar issues arising out of the same
criminal conviction or the same or similar set of facts and circumstances as asserted
in the present appeal or in his prior appeals, including Nos. 12-6011, 13-6110, and
18-6119, unless he obtains permission to do so. To obtain the court’s permission,
Miles must take the following steps:
1. File a petition with the clerk of this court requesting leave to file a pro se
2. Include in the petition the following information:
a. A list, by case name, number, and citation where applicable, of all
proceedings currently pending or previously filed in this court by
Miles, with a statement indicating the current status or disposition of
each proceeding; and
Appellate Case: 20-6150 Document: 010110446136 Date Filed: 12/02/2020 Page: 6
b. A list apprising this court of all outstanding injunctions, contempt
orders, or other judicial directions limiting his access to state or
federal court, including orders and injunctions requiring him to be
represented by an attorney; said list to include the name, number,
and citation, if applicable, of all such orders and injunctions;
3. File with the clerk a notarized affidavit, in proper legal form, which recites
the issues he seeks to present, including a particularized description of the
order or ruling being challenged and a short statement of the legal basis
asserted for the challenge. The affidavit must also certify, to the best of his
knowledge, that the legal arguments advanced are not frivolous or made in
bad faith; that they are warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law; that the appeal
or other proceeding is not interposed for any improper purpose; and that he
will comply with all federal appellate rules and local rules of this court.
These documents shall be submitted to the clerk of this court, who shall
forward them to the court for review to determine whether to permit the pro se appeal
or other proceeding. Without the court’s approval, the matter will not proceed. If the
court approves the submission, an order will be entered indicating that the matter
shall proceed in accordance with the Federal Rules of Appellate Procedure and the
Tenth Circuit Rules. Only then will the appeal or other proceeding formally be filed
in this court.
Outcome: We grant the government’s motion to enforce Miles’s appeal waiver and
dismiss this appeal. Moreover, the filing restrictions set forth herein shall be imposed on Miles twenty days from the date of this order and judgment unless this
court orders otherwise upon review of any objections.