United States v. Buzzard

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 16, 2026
• Docket: 25-5071
• Status: Unpublished

Opinion

Appellate Case: 25-5071 Document: 36-1 Date Filed: 04/16/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 16, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-5071 (D.C. No. 4:21-CR-00351-GKF-3) JAMES WILLIAM BUZZARD, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, MURPHY, and MORITZ, Circuit Judges. ________________________________

A jury convicted James Buzzard of first-degree murder in Indian Country and

related crimes. The district court sentenced him to life in prison. Prior to his trial,

the government had offered Buzzard a plea deal recommending a sentence between

63 to 78 months, but Buzzard rejected it. Eventually, the government revoked the

plea deal. Buzzard’s counsel grew concerned that he may have inadvertently failed

to convey that the plea deal had a firm expiration date, and that failure might have

violated Buzzard’s Sixth Amendment right to effective counsel. He requested 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 1 Appellate Case: 25-5071 Document: 36-1 Date Filed: 04/16/2026 Page: 2

court hold a hearing on the issue, and, because of counsel’s potential conflict, appoint

separate counsel for the hearing.

The court agreed in part and held a limited-purpose hearing to determine the

threshold issue of whether the plea deal had an expiration—but declined to appoint

separate counsel for the hearing. After the hearing, the court concluded, among other

things, that the plea deal had no firm expiration date but instead had been revoked

after Buzzard rejected the offer and made a counteroffer the government rejected.

Because there was no firm expiration date to communicate to Buzzard, the court

declined to hold the requested hearing on ineffective assistance of counsel and denied

Buzzard’s motion to appoint substitute counsel for that hearing.

On appeal, Buzzard contends that (1) he had a due process right to be present

at the hearing; (2) the court erred by not appointing separate counsel for that hearing;

and (3) his counsel was constitutionally ineffective for failing to communicate the

plea deal’s expiration date.

We find these arguments unpersuasive. We AFFIRM the judgment of the

district court and DISMISS Buzzard’s ineffective assistance claim without prejudice.

I. Background

Buzzard and his two sons conspired to murder and murdered a man who had killed

Buzzard’s daughter. A federal grand jury charged Buzzard with a number of crimes,

including first-degree murder in Indian Country. Prior to trial, in early 2023, the

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government offered each defendant a plea deal. Buzzard’s two sons took a deal, but

Buzzard did not.

On March 30, 2023, the government offered Buzzard the same plea deal that one

of his sons had accepted: plead guilty to one count of violating 18 U.S.C. § 924(o) (use of

a firearm to commit a crime of violence) with a stipulated cross reference to voluntary

manslaughter, and the other charges would be dropped. If Buzzard took the deal, his

approximate guideline sentence would be 63–78 months.

Buzzard made several counteroffers to the March 30 plea offer. The government

rejected each of them. It finally told Buzzard’s counsel that the March 30 plea deal

would expire on May 12. That day came, and Buzzard requested the government keep

the plea deal open long enough to allow Buzzard and his counsel to discuss the

government’s forthcoming response to his motion to dismiss. The government agreed.

The government responded to Buzzard’s motion to dismiss in late May. On June 1,

Buzzard again rejected the March 30 plea offer and proposed a counteroffer that the

government rejected. On June 6, the district court held a hearing on Buzzard’s motion to

dismiss and denied the motion.

On June 20, with trial a month away, Buzzard’s counsel again spoke with the

government about a possible plea deal. Government counsel stated that the March 30

plea deal was no longer available and that she would send Buzzard a new plea offer.

After that conversation, Buzzard’s counsel texted the government counsel that he was

headed to see Buzzard, and though it was “a long shot,” he planned to see if Buzzard

would sign the March 30 plea deal. R. Vol. I at 980. Buzzard signed the March 30 plea

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deal, which Buzzard’s counsel sent to government counsel. Government counsel

responded that she was not authorized to accept the offer.

Aware of a potential misstep, Buzzard’s counsel suggested during a pre-trial

hearing in early July that he may have been constitutionally ineffective for failing to

communicate the March 30 plea deal’s expiration date. Soon after, Buzzard filed a

motion requesting that the court appoint independent counsel to determine whether his

trial counsel had been ineffective. In that motion he also requested a hearing about his

counsel’s potential Sixth Amendment violation under Lafler v. Cooper, 566 U.S. 156

(2012), and its companion case, Missouri v. Frye, 566 U.S. 134 (2012), for failing to

communicate the expiration date of the March 30 plea deal. Buzzard did not request that

he be present for the hearing.

The government opposed the motion in part. It agreed to a hearing to discuss the

nature of the plea negotiations and did not oppose appointment of separate counsel for

that hearing. But it opposed the motion to the extent that Buzzard sought a pre-trial

determination of counsel’s ineffectiveness because that claim was not yet ripe: i.e.,

Buzzard might be acquitted or receive a lower sentence.

In response, the court set a limited pre-trial hearing to discuss “whether the March

30, 2023 plea offer to a § 924(o) charge expired on June 6, 2023 or any other date.”

R. Vol. I at 977. “Only if the court conclude[d] that the March 30 plea offer expired”

would it consider the Lafler/Frye ineffective assistance claim. Id. at 978. Because

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“[s]eparate, independent counsel for Mr. Buzzard [was] not necessary for [that] limited

inquiry,” the court declined to order independent counsel for the hearing. Id. at 977.

The court held the limited-purpose hearing on July 13. Buzzard was not present.

The court found no evidence that the March 30 plea offer had an explicit, fixed expiration

date following its May extension. Further, the court found that on June 20 the

government explicitly revoked the March 30 plea deal. As a result, it concluded that

Frye was inapplicable because that case concerned counsel’s failure to communicate the

explicit, fixed expiration date of a plea deal. Thus, it denied Buzzard’s request to appoint

independent counsel for a Lafler/Frye ineffective assistance inquiry.

A jury subsequently found Buzzard guilty of all charged counts. The district court

sentenced him to life in prison on the first-degree murder conviction and to 120 months’

imprisonment for each of the remaining counts.

II. Discussion

Buzzard raises three issues on appeal: (1) the district court violated his due

process right to be present at the limited-purpose hearing; (2) the district court erred

by denying his motion to appoint independent counsel; and (3) his trial counsel was

constitutionally ineffective for failing to communicate the expiration of the March 30

plea deal.

A. Right-to-Presence Claim

Buzzard asserts that his due process right to presence was violated when he

was not present at the limited-purpose hearing.

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Because Buzzard did not raise this objection below, we review for plain error.

United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights,

and which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quoting United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.

2004)). To establish that an alleged error is plain, the defendant must show the error

is “‘obvious’ or ‘clear’ under current, well-settled law.” United States v. Hardy, 149

F.4th 1153, 1159 (10th Cir. 2025) (quoting United States v. Faunce, 66 F.4th 1244,

1253 (10th Cir. 2023)). This “generally requires on-point precedent from the

Supreme Court or the Tenth Circuit.” Id.

A defendant has a due process right to be present at “critical” stages of

criminal proceedings. Kentucky v. Stincer, 482 U.S. 730, 745 (1987). “[A]

defendant is guaranteed the right to be present at any stage of the criminal proceeding

that is critical to its outcome if his presence would contribute to the fairness of the

procedure.” Id. This right attaches “whenever [defendant’s] presence has a relation,

reasonably substantial, to the fulness [sic] of his opportunity to defend against the

charge.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v.

Massachusetts, 291 U.S. 97, 105–06 (1934)). It is a limited right that applies “to the

extent that a fair and just hearing would be thwarted by [defendant’s] absence, and to

that extent only.” Id. (quoting Snyder, 291 U.S. at 108). “Due process does not give

a defendant a right to be present at a proceeding just so he can gather information for

later use.” United States v. Beierle, 810 F.3d 1193, 1199 (10th Cir. 2016). The

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“privilege of presence is not guaranteed ‘when presence would be useless, or the

benefit but a shadow.’” Stincer, 482 U.S. at 745 (quoting Snyder, 291 U.S. at 106–

07).

Buzzard contends that we should not review for plain error because his

absence created a structural error that per se requires us to reverse. He relies on

Arizona v. Fulminante, 499 U.S. 279 (1991) and United States v. Cronic, 466 U.S.

648 (1984) to argue that some trial errors require automatic reversal.

In Fulminante, the Supreme Court explained that when a trial error is a

“structural defect affecting the framework within which the trial proceeds, rather than

simply an error in the trial process itself,” the reviewing court must reverse. 499

U.S. at 310. Structural errors affect the “entire conduct of the trial from beginning to

end”: for example, total deprivation of counsel for a criminal defendant, partiality of

a judge, or the unlawful exclusion of members of the defendant’s race from a grand

jury. Id. at 309–10 (collecting cases). The Court compared Fulminante’s alleged

error—a coerced confession—to those types of structural errors and concluded it was

different in kind. Unlike those structural errors, the coerced confession involved

error which occurred “in the context of other evidence presented” and therefore could

be “quantitatively assessed” for harmless error. Id. at 308, 310.

In Cronic, the Court employed similar logic. It vacated the Sixth Circuit’s

reversal of a conviction because the Circuit improperly inferred a Sixth Amendment

violation without evaluating whether counsel’s actual performance prejudiced the

defendant. 466 U.S. at 666. The Circuit had inferred that the defendant’s

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representation by a court-appointed lawyer who was young, had a real estate practice,

and was appointed shortly before trial, was constitutionally ineffective and required

reversal—without a showing of harm to the defendant. The Court disagreed. Unlike

cases with a “complete denial of counsel” or an equivalent failure to “subject the

prosecution’s case to meaningful adversarial testing,” in which the error

compromises the entire framework of trial, the potential prejudice of the young

lawyer’s representation could be excised and quantified. See id. at 659. So, the

Court remanded the potential error for a prejudice analysis.

Most constitutional trial errors, like those alleged in Fulminante and Cronic,

do not fit into the narrow structural category; they undergo harmless error review,

and when not preserved, plain error review. See Fulminante, 499 U.S. at 306–07

(collecting cases applying harmless error review). Such errors include

unconstitutionally overbroad jury instructions, unconstitutional admissions of

evidence, unconstitutional restrictions on the right to cross-examine a witness, and,

as relevant here, violations of a defendant’s right to presence at trial. Id. In Rushen

v. Spain, 464 U.S. 114 (1983), the Supreme Court specifically noted that the violation

of a defendant’s right to presence is “subject to harmless error analysis . . . unless the

deprivation, by its very nature, cannot be harmless.” 464 U.S. at 117 n.2 (citation

modified).

Like most allegations of trial error, Buzzard’s alleged trial error is not

structural. Buzzard’s claimed error—lack of presence at a single, limited-purpose

hearing—is not the kind of structural error that “by its very nature, cannot be

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harmless” because we can quantify the impact of the alleged harm on the outcome of

trial. Id. Rather, it is the kind susceptible to harmless error review. See Fulminante,

499 U.S at 306. And because Buzzard did not object below, we apply plain error

review. 1

Buzzard argues that his due process right to be present at “critical stages” was

violated because he did not attend the “ineffective assistance of counsel hearing” on

July 13. Aplt. Br. at 13. He contends his presence was necessary because he may

have “needed to testify that he would have accepted the Mach [sic] 30th plea offer

before it expired.” Id. at 14. And finally, Buzzard argues he had a “right to know

what was going on” regarding his attorney’s “mistake.” Id. at 14–15.

These arguments do not persuade us. The district court limited the hearing to

whether Buzzard’s March 30 plea offer had expired. R. Vol. I at 977 (“[D]uring the

July 13 hearing, the court intends to take up only the limited issue of identification of

the terms of the United States’s plea offer to Mr. Buzzard—specifically, whether the

March 30, 2023 plea offer to a § 924(o) charge expired on June 6, 2023 or any other

date.”). The court indicated it would hold a separate hearing on ineffective assistance

1 Contrary to Buzzard’s argument, he did have the opportunity to object below. Even assuming Buzzard’s counsel was conflicted and motivated not to object, Buzzard maintained the ability to raise the issue. For example, Buzzard’s counsel consulted him before filing the motion requesting this hearing, and that motion did not request Buzzard’s presence. R. Vol. I at 848–51. Further, Buzzard gives no explanation for why he did not object in the district court after the hearing. To the extent that Buzzard argues his counsel should have objected and was thus constitutionally ineffective for subjecting his claim to plain error review, that issue is not ripe for this court to hear. See infra Section II(c). 9 Appellate Case: 25-5071 Document: 36-1 Date Filed: 04/16/2026 Page: 10

“only if” it found that the plea deal had expired. Id. at 978. Buzzard does not show

how a fair hearing would be “thwarted by his absence” because counsel knew the

content of their plea discussions with each other. Snyder, 291 U.S. at 108.

Nor was Buzzard’s willingness to testify about his openness to the March 30

plea deal relevant to the question of expiration. Due process does not guarantee a

right to presence when such “presence would be useless.” Stincer, 482 U.S. at 745.

Neither did Buzzard’s desire to be in the know warrant his presence. See Beierle,

810 F.3d at 1199.

The district court did not plainly err by failing to ensure Buzzard’s presence at

the limited-purpose hearing.

B. Substitute Counsel Claim

Buzzard next argues that the district court erred in denying his motion to

appoint substitute counsel to represent him at the limited-purpose hearing. He argues

that substitute counsel was required under the Sixth Amendment and the Criminal

Justice Act because his trial counsel had a conflict of interest. 2 We review a district

court’s denial of a motion to substitute counsel for abuse of discretion. United States

v. Lott, 433 F.3d 718, 725 (10th Cir. 2006).

2 The Criminal Justice Act requires that “[t]he United States magistrate judge or the court shall appoint separate counsel for persons having interests that cannot properly be represented by the same counsel, or when other good cause is shown.” 18 U.S.C. § 3006A(b).

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To justify substitute counsel, a “defendant must show good cause, such as a

conflict of interest, a complete breakdown of communication or an irreconcilable

conflict which leads to an apparently unjust verdict.” United States v. Porter, 405

F.3d 1136, 1140 (10th Cir. 2005) (quoting United States v. Padilla, 819 F.2d 952,

955 (10th Cir. 1987)). “Good cause for substitution of counsel consists of more than

a mere strategic disagreement between a defendant and his attorney.” Id. (quoting

United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). 3

Buzzard asserts that the hearing presented an inherent conflict of interest for

his counsel because it was about his counsel’s ineffectiveness. Had the district court

held a hearing on that issue, which Buzzard had requested, the conflict would be

apparent. But that hearing never happened. Instead, the court held a hearing only for

the purpose of determining whether the March 30 plea offer had a firm expiration

date that should have been communicated to Buzzard. Thus, counsel had no conflict

of interest, nor was there any other reason to appoint substitute counsel.

The district court did not abuse its discretion in denying Buzzard’s motion for

substitute counsel.

C. Ineffective Assistance Claim

Finally, Buzzard claims that his trial counsel was constitutionally ineffective.

3 We apply this same “good cause” standard to challenges brought under the Sixth Amendment and the Criminal Justice Act. Compare Lott, 310 F.3d at 1249–50 (expressing this standard in the context of a Sixth Amendment ineffective assistance challenge), with United States v. Clark, 717 F.3d 790, 810 (10th Cir. 2013) (applying it to a challenge under the Criminal Justice Act). 11 Appellate Case: 25-5071 Document: 36-1 Date Filed: 04/16/2026 Page: 12

Claims of ineffectiveness brought on direct appeal are “presumptively

dismissible, and virtually all will be dismissed.” United States v. Flood, 635 F.3d

1255, 1260 (10th Cir. 2011) (quoting United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc)). The reason for this presumption is that in most cases, the

record below is insufficient to permit full appellate review of constitutional

ineffectiveness. United States v. Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007). In

Flood, this court explained:

A factual record must be developed in and addressed by the district court in the first instance for effective review. Even if evidence is not necessary, at the very least counsel accused of deficient performance can explain their reasoning and actions, and the district court can render its opinion on the merits of the claim.

635 F.3d at 1260 (quoting Galloway, 56 F.3d at 1240).

We consider ineffective assistance claims on direct appeal in limited

circumstances: when (1) the issue was raised before and ruled on by the district court,

and (2) an adequate factual record exists. Id. Neither circumstance applies here.

While the court did make findings relevant to constitutional effectiveness under Frye,

it did so only within its resolution of Buzzard’s motion to appoint substitute counsel.

The court did not conclude one way or another whether Buzzard’s trial counsel was

constitutionally ineffective in plea negotiations.

Regardless, the record is not sufficiently developed for us to decide the claim

on direct appeal. Flood, 635 F.3d at 1260. The district court did not gather evidence

to determine whether Buzzard’s counsel was constitutionally ineffective in plea

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negotiations. We do not know, for example, the nature and extent of conversations

between counsel and Buzzard, why Buzzard rejected the government’s plea offers, or

what counsel’s reasons were for proceeding and advising Buzzard in the manner that

he did.

As a result, Buzzard’s path to challenge counsel’s performance is a petition for

habeas relief within the time limit established by 28 U.S.C. § 2255(f).

III. Conclusion

We affirm the district court and dismiss Buzzard’s ineffective assistance of

counsel claim.

Entered for the Court

Timothy M. Tymkovich Circuit Judge