Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6067 (D.C. No. 5:04-CR-00032-F-1) DESIRAY ALLEN, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________
Desiray Allen appeals the district court’s order denying his request to appeal
out of time an underlying judgment in which the district court revoked Allen’s
supervised release and sentenced him to ten months in prison plus 12 months of
supervised release. Defense counsel filed an Anders brief and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after
“conscientious examination” of record, counsel finds appeal “wholly frivolous,” then
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 2
counsel may move to withdraw and contemporaneously file “brief referring to
anything in the record that might arguably support the appeal”). Despite obtaining an
extension of time to respond to the Anders brief, Allen did not file a pro se response.
See id. (noting that Anders brief should be sent to defendant “and time allowed him
to raise any points that he chooses”). The government declined to file a brief. We
have reviewed the Anders brief and conducted a full examination of the record to
determine whether Allen’s appeal is wholly frivolous. See United States v. Calderon,
428 F.3d 928, 930 (10th Cir. 2005). Because we find that it is, we dismiss the appeal
and grant defense counsel’s motion to withdraw. See Anders, 386 U.S. at 744.
As an initial matter, we note that although Allen recently informed us that he
has been released from prison, his appeal is not moot. Because Allen has not yet
finished serving his 12-month term of supervised release, there remains a possibility
that—were he to succeed in both this appeal and a subsequent out-of-time appeal
from the revocation of his supervised release and the resulting sentence—Allen could
receive a reduced term of supervised release. See United States v. Salazar, 987 F.3d
1248, 1251–53 (10th Cir. 2021) (holding sentencing appeal not moot despite release
from prison because defendant had “not yet served his term of supervised release[,]
[a]nd a favorable appellate decision could potentially reduce that term of supervised
release”).
We now turn to Allen’s request to file an out-of-time notice of appeal. At a
March 29, 2021 hearing, the district court found that Allen had violated the terms of
his supervised release, revoked the supervised release, sentenced Allen to ten months
2 Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 3
in prison plus 12 additional months of supervised release, and informed Allen of his
appeal rights. See 18 U.S.C. § 3583(e)(3), (h) (providing that after finding defendant
violated terms of supervised release, district court may revoke it “and require the
defendant to serve in prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised release” and may also
“include a requirement that the defendant be placed on a term of supervised release
after imprisonment”). The district court entered judgment the next day, March 30.
The day after that, Allen’s counsel sent Allen a letter advising him that the deadline
to appeal—14 days from the entry of judgment—was April 13. See Fed. R. App. P.
4(b)(1)(A)(i) (providing that criminal defendant must file notice of appeal within 14
days of entry of judgment).
Several days after that deadline, on April 19, Allen contacted his counsel and
said he wanted to appeal. Allen’s counsel then moved to extend the time to file a
notice of appeal, which the district court may do if it finds “excusable neglect or
good cause.” Fed. R. App. P. 4(b)(4). The district court denied the motion because it
found neither excusable neglect nor good cause for Allen’s delay in filing a notice of
appeal.
Reviewing that decision, we see no nonfrivolous argument that the district
court abused its discretion. See Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir.
2004) (noting abuse-of-discretion review of order refusing to extend time for filing
notice of appeal). As the district court correctly recognized, excusable neglect turns
on “all relevant circumstances,” including “[1] the danger of prejudice to the
3 Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 4
[nonmoving party], [2] the length of the delay and its potential impact on judicial
proceedings, [3] the reason for the delay, including whether it was within the
reasonable control of the movant, and [4] whether the movant acted in good faith.”
United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (alterations in original)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380, 395
(1993)). “[P]erhaps the most important single factor” is the reason for the delay. Id.
at 1163 (quoting City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th
Cir. 1994)).
The district court concluded that three of the factors weighed in Allen’s favor:
there was little danger of prejudice to the government, the length of the delay was
short and would not impact judicial proceedings, and there was no evidence Allen
acted in bad faith. But critically, it found that Allen provided no reason for the delay.
On this point, the district court noted that even assuming Allen never received
counsel’s March 31 letter, the district court itself had informed Allen of his appellate
rights and the 14-day deadline. And the only other reason Allen offered for the delay
was his counsel’s unawareness of Allen’s phone privileges. But unawareness of
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6067 (D.C. No. 5:04-CR-00032-F-1) DESIRAY ALLEN, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________
Desiray Allen appeals the district court’s order denying his request to appeal
out of time an underlying judgment in which the district court revoked Allen’s
supervised release and sentenced him to ten months in prison plus 12 months of
supervised release. Defense counsel filed an Anders brief and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after
“conscientious examination” of record, counsel finds appeal “wholly frivolous,” then
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 2
counsel may move to withdraw and contemporaneously file “brief referring to
anything in the record that might arguably support the appeal”). Despite obtaining an
extension of time to respond to the Anders brief, Allen did not file a pro se response.
See id. (noting that Anders brief should be sent to defendant “and time allowed him
to raise any points that he chooses”). The government declined to file a brief. We
have reviewed the Anders brief and conducted a full examination of the record to
determine whether Allen’s appeal is wholly frivolous. See United States v. Calderon,
428 F.3d 928, 930 (10th Cir. 2005). Because we find that it is, we dismiss the appeal
and grant defense counsel’s motion to withdraw. See Anders, 386 U.S. at 744.
As an initial matter, we note that although Allen recently informed us that he
has been released from prison, his appeal is not moot. Because Allen has not yet
finished serving his 12-month term of supervised release, there remains a possibility
that—were he to succeed in both this appeal and a subsequent out-of-time appeal
from the revocation of his supervised release and the resulting sentence—Allen could
receive a reduced term of supervised release. See United States v. Salazar, 987 F.3d
1248, 1251–53 (10th Cir. 2021) (holding sentencing appeal not moot despite release
from prison because defendant had “not yet served his term of supervised release[,]
[a]nd a favorable appellate decision could potentially reduce that term of supervised
release”).
We now turn to Allen’s request to file an out-of-time notice of appeal. At a
March 29, 2021 hearing, the district court found that Allen had violated the terms of
his supervised release, revoked the supervised release, sentenced Allen to ten months
2 Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 3
in prison plus 12 additional months of supervised release, and informed Allen of his
appeal rights. See 18 U.S.C. § 3583(e)(3), (h) (providing that after finding defendant
violated terms of supervised release, district court may revoke it “and require the
defendant to serve in prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised release” and may also
“include a requirement that the defendant be placed on a term of supervised release
after imprisonment”). The district court entered judgment the next day, March 30.
The day after that, Allen’s counsel sent Allen a letter advising him that the deadline
to appeal—14 days from the entry of judgment—was April 13. See Fed. R. App. P.
4(b)(1)(A)(i) (providing that criminal defendant must file notice of appeal within 14
days of entry of judgment).
Several days after that deadline, on April 19, Allen contacted his counsel and
said he wanted to appeal. Allen’s counsel then moved to extend the time to file a
notice of appeal, which the district court may do if it finds “excusable neglect or
good cause.” Fed. R. App. P. 4(b)(4). The district court denied the motion because it
found neither excusable neglect nor good cause for Allen’s delay in filing a notice of
appeal.
Reviewing that decision, we see no nonfrivolous argument that the district
court abused its discretion. See Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir.
2004) (noting abuse-of-discretion review of order refusing to extend time for filing
notice of appeal). As the district court correctly recognized, excusable neglect turns
on “all relevant circumstances,” including “[1] the danger of prejudice to the
3 Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 4
[nonmoving party], [2] the length of the delay and its potential impact on judicial
proceedings, [3] the reason for the delay, including whether it was within the
reasonable control of the movant, and [4] whether the movant acted in good faith.”
United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (alterations in original)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380, 395
(1993)). “[P]erhaps the most important single factor” is the reason for the delay. Id.
at 1163 (quoting City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th
Cir. 1994)).
The district court concluded that three of the factors weighed in Allen’s favor:
there was little danger of prejudice to the government, the length of the delay was
short and would not impact judicial proceedings, and there was no evidence Allen
acted in bad faith. But critically, it found that Allen provided no reason for the delay.
On this point, the district court noted that even assuming Allen never received
counsel’s March 31 letter, the district court itself had informed Allen of his appellate
rights and the 14-day deadline. And the only other reason Allen offered for the delay
was his counsel’s unawareness of Allen’s phone privileges. But unawareness of
phone privileges does not demonstrate that Allen lacked phone privileges or that
Allen was entirely unable to communicate with his counsel until after the appeal
deadline had passed. And because the reason for the delay is the most important
factor in the analysis, the district court weighed this factor more heavily than the
others and concluded that Allen failed to show excusable neglect. See Torres, 372
F.3d at 1162–64 (finding no excusable neglect where three lesser factors weighed in
4 Appellate Case: 21-6067 Document: 010110648736 Date Filed: 02/23/2022 Page: 5
defendant’s favor but reason for delay did not). We see no basis in the record or the
governing law to challenge any part of the district court’s assessment of excusable
neglect.
The district court also found no good cause to justify extending the time to
appeal, correctly noting that unlike excusable neglect, good cause traditionally
requires circumstances outside the defendant’s control. See id. at 1161 n.1; Bishop,
371 F.3d at 1207. And the district court found that Allen failed to demonstrate any
circumstances outside his control that prohibited him from filing a timely notice of
appeal. We likewise see no such circumstances in the record and therefore see no
nonfrivolous argument for disturbing the district court’s good-cause analysis.
Because our examination of the record reveals no nonfrivolous basis for
appeal, we dismiss the appeal and grant defense counsel’s motion to withdraw. See
Calderon, 428 F.3d at 930.
Entered for the Court
Nancy L. Moritz Circuit Judge