United States v. Allen

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 20, 2022
• Docket: 21-2067
• Status: Unpublished

Opinion

Appellate Case: 21-2067 Document: 010110634660 Date Filed: 01/20/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 20, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2067 (D.C. No. 1:19-CR-01204-JB-1) IVAN ALLEN, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver in Ivan Allen’s plea agreement pursuant to United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), and 10th Cir. R. 27.3(a)(1)(c).

Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the

appeal.

Mr. Allen pleaded guilty to two counts of assaulting a federal officer involving

physical contact. As part of the plea agreement, he waived his right to appeal his

conviction and any sentence within the statutory maximum. Both by signing the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-2067 Document: 010110634660 Date Filed: 01/20/2022 Page: 2

written plea agreement and in his responses to the court’s questions at the change of

plea hearing, Mr. Allen acknowledged that he was entering his plea knowingly and

voluntarily and that he understood its consequences, including the possible sentences

and the appeal waiver. The court accepted the plea and sentenced Mr. Allen to 21

months’ imprisonment. Despite receiving a sentence well below the statutory eight-

year maximum, see 18 U.S.C. § 111(a), he filed a notice of appeal. His docketing

statement indicates that he intended to challenge the validity of his guilty plea, the

validity and enforceability of the appeal waiver, and the reasonableness of his

sentence.

In response to the government’s motion to enforce the appeal waiver,

Mr. Allen’s counsel cited Anders v. California, 386 U.S. 738, 744 (1967), and stated

that Mr. Allen has no non-frivolous argument against enforcement of his appeal

waiver. Counsel also requested permission to withdraw from representing Mr. Allen.

See id. We gave Mr. Allen an opportunity to file a pro se response to the motion to

enforce, but he has not done so.

In ruling on a motion to enforce, we consider whether the appeal falls within

the scope of the waiver, whether the waiver was knowing and voluntary, and whether

enforcing it would result in a miscarriage of justice. Hahn, 359 F.3d at 1325.

Having reviewed the proceedings in accordance with our obligation under Anders,

see 386 U.S. at 744, we conclude that the Hahn factors have been met and that there

is no non-frivolous argument to make against enforcing the appeal waiver.

2 Appellate Case: 21-2067 Document: 010110634660 Date Filed: 01/20/2022 Page: 3

Accordingly, we grant the government’s motion to enforce Mr. Allen’s appeal

waiver and dismiss this appeal. We also grant defense counsel’s motion to withdraw.

Entered for the Court Per Curiam