United States v. Dudley

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 22, 2022
• Docket: 22-1016
• Status: Unpublished

Opinion

Appellate Case: 22-1016 Document: 010110714823 Date Filed: 07/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1016 (D.C. No. 1:18-CR-00286-WJM-1) MARVIN SAKORI MALEIK DUDLEY, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, MORITZ, and CARSON, Circuit Judges. _________________________________

Marvin Dudley pleaded guilty to possessing a firearm as a felon and to

possessing a firearm in furtherance of a drug-trafficking crime. See 18 U.S.C.

§§ 922(g)(1), 924(c)(1)(A)(i). As his plea agreement required, he waived the right to

appeal. He has appealed nevertheless, and the government moves to enforce the

appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)

(en banc) (per curiam). Seeing no grounds to oppose the government’s motion,

Mr. Dudley’s attorney moves to withdraw. See Anders v. California, 386 U.S. 738,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-1016 Document: 010110714823 Date Filed: 07/22/2022 Page: 2

744 (1967). At our invitation, Mr. Dudley himself has responded to the

government’s motion.1

We will enforce an appeal waiver if (1) the appeal falls within the waiver’s

scope, (2) the defendant waived the right to appeal knowingly and voluntarily, and

(3) enforcing the waiver would not “result in a miscarriage of justice.” Hahn,

359 F.3d at 1325.

Scope of the waiver. Mr. Dudley waived the right to appeal “any matter in

connection with this prosecution, conviction, or sentence” subject to three exceptions

that do not apply. R. vol. 1 at 149–50. This appeal fits within the scope of the

waiver.

Knowing and voluntary waiver. Mr. Dudley does not dispute the

government’s claim that he waived the right to appeal knowingly and voluntarily.

And our own examination of the proceedings reveals no grounds to dispute the

government’s position. See Anders, 386 U.S. at 744.

Miscarriage of justice. Enforcing an appeal waiver will result in a miscarriage

of justice if (1) the district court relied on an impermissible factor; (2) ineffective

assistance of counsel in negotiating the waiver makes it invalid; (3) the sentence

exceeds the statutory maximum; or (4) the waiver is otherwise unlawful, seriously

affecting the fairness, integrity, or public reputation of the proceedings. Hahn,

359 F.3d at 1327. Mr. Dudley has the burden to show that enforcing his appeal

1 Mr. Dudley has filed a response and a supplement to the response. 2 Appellate Case: 22-1016 Document: 010110714823 Date Filed: 07/22/2022 Page: 3

waiver will result in a miscarriage of justice. See United States v. Anderson,

374 F.3d 955, 959 (10th Cir. 2004).

Mr. Dudley argues that his waiver is otherwise unlawful because he is actually

innocent of the § 924(c) count. In the context of a prisoner’s first habeas

proceedings, a credible showing of actual innocence can overcome procedural default

and the limitations period. See Fontenot v. Crow, 4 F.4th 982, 1029 (10th Cir. 2021),

cert. denied, 142 S. Ct. 2777 (2022) (citing McQuiggin v. Perkins, 569 U.S. 383, 386

(2013)). But neither the Supreme Court nor this court has ever held that actual

innocence can overcome an appeal waiver. And even if it could, Mr. Dudley has not

made a credible showing of actual innocence.

The § 924(c) count alleged that Mr. Dudley possessed a firearm in furtherance

of a drug-trafficking crime—possession of a controlled substance under 21 U.S.C.

§ 844(a). Simple possession qualifies as a drug-trafficking crime if it is a felony.

See § 924(c)(2). And simple possession is a felony if the defendant has “a prior

conviction for any drug, narcotic, or chemical offense chargeable under the law of

any State.” § 844(a); see 18 U.S.C. § 3559(a).

In his plea agreement, Mr. Dudley stipulated that he had four prior Colorado

controlled-substance convictions and that any one of them made simple possession a

felony that could serve as the predicate for the § 924(c) count. Now, though, he says

one of his prior convictions does not qualify as a “drug, narcotic, or chemical

offense” under § 844(c). As a result, he concludes, simple possession was not a

felony for him, and he is innocent of the § 924(c) count.

3 Appellate Case: 22-1016 Document: 010110714823 Date Filed: 07/22/2022 Page: 4

Mr. Dudley’s argument does not suggest his innocence. He stipulated that he

had four prior convictions, each of them sufficient to make simple possession a

felony. So it does not matter if one of them does not in fact qualify as a “drug,

narcotic, or chemical offense.” That would still leave him, by his own stipulation,

with three prior convictions that each made simple possession a felony.

Mr. Dudley also argues that the district court erred in denying his motion to

dismiss and that the district court showed animus toward him at sentencing. These

arguments allege error in Mr. Dudley’s conviction and sentence, not in the appeal

waiver itself. So to the extent Mr. Dudley contends those errors make his waiver

otherwise unlawful, he is mistaken: “An appeal waiver is not ‘unlawful’ merely

because the claimed error would, in the absence of waiver, be appealable.” United

States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007).

In sum, Mr. Dudley has not shown that enforcing his appeal waiver will result

in a miscarriage of justice.

* * *

We grant the government’s motion to enforce the appeal waiver. We grant

defense counsel’s motion to withdraw. We deny Mr. Dudley’s request to appoint

different counsel to represent him. We dismiss this appeal.

Entered for the Court Per Curiam