United States v. Franklin

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 9, 2024
• Docket: 23-6130
• Status: Unpublished

Opinion

Appellate Case: 23-6130 Document: 010110980469 Date Filed: 01/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6130 (D.C. No. 5:22-CR-00370-JD-1) ERIKA MAY FRANKLIN, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, EBEL, and BACHARACH, Circuit Judges. _________________________________

Erika May Franklin was charged with four counts related to drug trafficking.

She entered into a plea agreement with the government, agreeing to plead guilty to

one count of maintaining a drug-involved premises in exchange for the government

agreeing to dismiss the remaining three counts. The advisory Sentencing Guidelines

range was initially calculated to be 292 to 365 months in prison, but because the

statutory maximum for that count was 20 years, the district court explained that the

advisory Guidelines range would be 240 months. The district court then granted

Ms. Franklin a significant downward variance, sentencing her to 96 months in prison.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-6130 Document: 010110980469 Date Filed: 01/09/2024 Page: 2

Despite the appeal waiver in her plea agreement, Ms. Franklin filed an appeal. The

government has moved to enforce the appeal waiver in accordance with United States

v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc).

Under Hahn, we consider “(1) whether the disputed appeal falls within the

scope of the waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived [her] appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” Id. at 1325. The government argues

Ms. Franklin’s appeal falls within the scope of her waiver, her waiver was knowing

and voluntary, and enforcing the waiver would not result in a miscarriage of justice.

Ms. Franklin’s counsel filed a response to the government’s motion to enforce

pursuant to Anders v. California, 386 U.S. 738 (1967), stating there was no

non-frivolous basis to oppose the motion and requesting permission to withdraw.

Consistent with Anders, 386 U.S. at 744, this court gave Ms. Franklin the opportunity

to file a pro se response, which she did. We have conducted an independent review

of the proceedings as Anders requires, see id., and, as discussed below, we conclude

there is no basis to allow Ms. Franklin to avoid enforcement of the waiver.

We first examine “whether the disputed appeal falls within the scope of the

waiver.” Hahn, 359 F.3d at 1325. In her docketing statement and pro se response,

Ms. Franklin indicates she wants to challenge her sentence. But under the terms of

her appeal waiver, she “waive[d] the right to appeal [her] sentence . . . and the

manner in which the sentence is determined.” Mot. to Enf., Attach. 1 at 8. The only

exception to the appeal waiver is “[i]f the sentence is above the advisory Guidelines

2 Appellate Case: 23-6130 Document: 010110980469 Date Filed: 01/09/2024 Page: 3

range determined by the Court to apply to Defendant’s case.” Id. Ms. Franklin’s

96-month sentence is well below the advisory Guidelines range of 240 months. Her

appeal therefore falls within the scope of the waiver.

We next ask “whether the defendant knowingly and voluntarily waived [her]

appellate rights.” Hahn, 359 F.3d at 1325. This requires us to examine (1) “whether

the language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily,” and (2) whether there was “an adequate Federal Rule of

Criminal Procedure 11 colloquy.” Id.

The plea agreement says expressly that Ms. Franklin knowingly and

voluntarily waived her right to appeal. See Mot. to Enf., Attach. 1 at 8. And the

Rule 11 colloquy was adequate. The district court reviewed with Ms. Franklin the

waivers in her plea agreement, including the waiver of her right to appeal her

sentence, and confirmed her understanding of those waivers. See id., Attach. 2 at

25-28. We therefore conclude Ms. Franklin’s waiver was knowing and voluntary.

Finally, we ask “whether enforcing the waiver would result in a miscarriage of

justice.” Hahn, 359 F.3d at 1325. We have explained that “enforcement of an

appellate waiver does not result in a miscarriage of justice unless” it involves one of

the following four situations: “the district court relied on an impermissible factor

such as race,” “ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid,” “the sentence exceeds the statutory

maximum,” or “the waiver is otherwise unlawful.” Id. at 1327 (internal quotation

3 Appellate Case: 23-6130 Document: 010110980469 Date Filed: 01/09/2024 Page: 4

marks omitted). We have reviewed the record and conclude that enforcing the waiver

will not result in a miscarriage of justice under this standard.

We grant the government’s motion to enforce the appeal waiver and dismiss

this appeal. We also grant defense counsel’s request to withdraw.

Entered for the Court Per Curiam