United States v. Holzer

32 F.4th 875

UNITED STATES of America, Plaintiff - Appellee,

v.Richard HOLZER, Defendant - Appellant.

No. 21-1080

United States Court of Appeals, Tenth Circuit.

FILED April 25, 2022

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing for Appellant.

Paul Farley, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.

Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Richard Holzer was arrested and criminally charged after federal undercover agents determined that Holzer had taken substantial steps towards bombing a synagogue in Pueblo, Colorado. Holzer subsequently pleaded guilty, pursuant to a written plea agreement, to one count of intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through force, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3), and one count of maliciously attempting to damage and destroy, by means of fire and explosives, a synagogue, in violation of 18 U.S.C. § 844(i). The district court sentenced Holzer to a term of imprisonment of 235 months, to be followed by a fifteen-year term of supervised release. The district court also ordered Holzer to comply with eleven special conditions of supervised release, including Special Condition Nine, that prohibits him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy.

Holzer now appeals, arguing that the district court erred in imposing Special Condition Nine. Specifically, Holzer argues that Special Condition Nine infringes on his First Amendment rights, and that the district court failed to make any particularized findings to support the special condition. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that Holzer's challenge to Special Condition Nine is barred by the appellate waiver provision of his plea agreement. Consequently, we dismiss Holzer's appeal.

I

Factual background

Holzer, who was living in Pueblo, Colorado at the time of the offenses in this case, used multiple social media accounts to promote white supremacy ideology and acts of violence that were both racially and religiously motivated. In late September 2019, an Online Covert Employee (OCE) employed by the Federal Bureau of Investigation (FBI) contacted Holzer and told him that Facebook suggested that they should be friends. The OCE's Facebook account portrayed the OCE as a white female who was supportive of white supremacy ideology. Holzer accepted the OCE's friend request and soon thereafter began sending the OCE a variety of messages, photographs, and videos, all of which were focused on white supremacy and related acts of violence. For example, Holzer told the OCE that in October 2018, he had paid an individual to place arsenic in the pipes of a local synagogue.

In early October 2019, Holzer told the OCE that he was preparing for a racial holy war and that he intended to poison the water supply at Temple Emanuel, a synagogue located in Pueblo, Colorado. Holzer invited the OCE to participate in those efforts, and proceeded to explain where he could obtain arsenic to carry out the poisoning. The OCE responded by telling Holzer that she had friends who would soon be in the area of Colorado Springs. Holzer replied that he was interested in meeting the OCE's friends.

On October 12, 2019, an FBI undercover agent (UC-1) contacted Holzer and presented himself as one of the OCE's friends. UC-1 told Holzer that he and some friends planned to be in Colorado Springs the following week. Holzer sent UC-1 several photos of himself with various images, paraphernalia, and clothing associated with white supremacy and Nazi ideology. Holzer also told UC-1 that he was planning to poison a synagogue in Pueblo. Over the next several days, Holzer continued to send UC-1 images related to white supremacy and Nazi ideology. Holzer and UC-1 made plans to meet in person.

On October 17, 2019, three undercover FBI agents (UCs) posing as the OCE's friends met with Holzer in Colorado Springs. Holzer brought white supremacy paraphernalia as gifts for the UCs, including a flag, several patches, a metal Thor's hammer, and a mask. Holzer told the UCs about his efforts in October 2018 to poison a synagogue's water supply, and falsely claimed that he caused that synagogue to be shut down for months. Holzer then talked about poisoning the water supply at Temple Emanuel, with the goal of shutting the synagogue down and "mak[ing] them know they're not wanted here." ROA, Vol. I at 72. When one of the UCs asked Holzer an open-ended question about what other methods he was considering, Holzer mentioned welding the doors shut and suggested that he could put together Molotov cocktails to throw through the synagogue's windows. Holzer also repeatedly expressed his hatred of Jewish people and discussed his efforts to drive them out of Pueblo.

Following the meeting, Holzer and the UCs drove to Pueblo to visit Temple Emanuel and determine what type of attack would be most effective. While at Temple Emanuel, Holzer opined that Molotov cocktails would not be sufficient to destroy the entire building. Holzer and the UCs then discussed using pipe bombs. The UCs offered to supply the pipe bombs, but cautioned that it would take some time because they would need to bring them in from out of state. Holzer stated in response, "Let's get that place off the map." Id .

Following the meeting, Holzer continued to take steps in furtherance of bombing Temple Emanuel. On October 19, 2019, Holzer sent UC-1 a video showing him walking around the exterior of Temple Emanuel and commenting on various features of the building. Later that day, Holzer participated in a group chat with the UCs to discuss the bombing plot. During that chat, one of the UCs wrote, "Let me know what you want the end result to look like and I'll get to work." Id . at 73. Holzer responded the next day with a photo of a church, half of which had crumbled to the ground, and stated, "Let's have it look something like that." Id .

On October 31, 2019, Holzer met again with UC-1. The two discussed the plan to attack Temple Emanuel and agreed that Holzer would meet with the UCs at a motel around 9:00 p.m. on November 1 to examine the explosives before going to Temple Emanuel. At Holzer's request, they went to a store to purchase gloves to use during the attack. Holzer repeatedly affirmed that he was prepared to go through with the attack the following night. When UC-1 raised the possibility of someone being inside Temple Emanuel when the explosives were detonated, Holzer stated that he did not think anyone would be there, but that he would not care if they were because they would be Jewish.

On the evening of November 1, 2019, UC-1 picked up Holzer and drove him to a motel where two of the other UCs were waiting. One of the UCs showed Holzer two pipe bombs and two bundles each containing seven sticks of dynamite.¹ Holzer examined the explosives and declared, "this is absolutely gorgeous." Id . at 74–75. Holzer then asserted that they should carry out the attack at 2:30 or 3:00 in the morning in order to avoid the police.

Shortly thereafter, Holzer was arrested and transported to a police station where he waived his Miranda rights and agreed to speak with the FBI. Holzer admitted that he had been planning to blow up Temple Emanuel that night with the pipe bombs and dynamite in the motel room. He referred to the plan as "my mountain" and to Jews and Temple Emanuel as a "cancer" on the community. Id . at 75. Although Holzer stated that he had not planned on hurting anyone, when asked what he would have done if there had been someone inside Temple Emanuel when he arrived that night, he admitted that he would have gone through with the attack because anyone inside would have been Jewish.

Procedural background

On November 2, 2019, a criminal complaint was filed in the United States District Court for the District of Colorado charging Holzer with one count of attempting to obstruct religious exercise by force using explosives and fire, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3).

On November 21, 2019, a federal grand jury returned a three-count indictment against Holzer. Count 1 charged Holzer with 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, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3). Count 2 charged Holzer with maliciously attempting to damage and destroy Temple Emanuel by means of fire and explosives, in violation of 18 U.S.C. § 844(i). Count 3 charged Holzer with using fire and an explosive to commit a federal felony, in violation of 18 U.S.C. § 844(h)(1).

On October 15, 2020, Holzer pleaded guilty, pursuant to a written plea agreement with the United States, to Counts 1 and 2 of the indictment. The plea agreement included a "Waiver of Appeal" section that stated as follows:

The defendant is aware that 18 U.S.C. § 3742 affords the right to appeal the sentence, including the manner in which that sentence is determined. Understanding this, and in exchange for the concessions made by the government in this agreement, the defendant knowingly and voluntarily waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless it meets one of the following criteria: (1) the sentence exceeds the maximum penalty provided in the statute of conviction; (2) the sentence exceeds 240 months; or (3) the government appeals the sentence imposed. If any of these three criteria apply, the defendant may appeal on any ground that is properly available in

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