United States v. Hays

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 30, 2023
• Docket: 22-1064
• Status: Unpublished

Opinion

Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 30, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-1064 v. (D.C. No. 1:21-CR-00024-RBJ-2) (D. Colo.) KITIRA CHRISTINE HAYS, a/k/a Kitira Hays,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

After examining the Anders brief filed by Defendant-Appellant Kitira Hays’s

counsel and the entire 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.

Hays pleaded guilty to aiding and abetting Hobbs Act robbery, in violation of

18 U.S.C. §§ 2, 1951, and using or carrying a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A). Hays waived her

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 2

right to appeal except for the following issue: does her conviction for aiding and

abetting Hobbs Act robbery amount to a “crime of violence” for purposes of

§ 924(c).1 After answering that question in the affirmative and, therefore, denying

her motion to dismiss the § 924(c) charge, the district court sentenced Hays to a total

term of imprisonment of 177 months, consisting of 57 months as to the Hobbs Act

conviction and 120 months as to the § 924(c) conviction. After filing a timely notice

of appeal, Hays’s counsel filed in this court a brief pursuant to Anders v. California,

386 U.S. 738 (1967), asserting he could find no meritorious basis for appeal and

moving to withdraw as counsel. For those reasons set out below, this court grants

counsel’s motion to withdraw and dismisses this appeal.

This appeal is before the court on Hays’s counsel’s Anders brief. Pursuant to

Anders, counsel may “request permission to withdraw where counsel conscientiously

examines a case and determines that any appeal would be wholly frivolous.” United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to

submit an appellate brief “indicating any potential appealable issues.” Id. Once

notified of counsel’s brief, the defendant may then submit additional arguments to

this court. Id. We “must then conduct a full examination of the record to determine

whether defendant’s claims are wholly frivolous.” Id. Despite being notified of her

entitlement to do so on at least two occasions, Hays did not file a brief in response to

1 As aptly noted by Hays’s appellate counsel, there exist no facts in the record supporting a non-frivolous argument that the partial waiver of appellate rights is unenforceable under the standard set out by this court in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). 2 Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 3

counsel’s Anders brief. The government also declined to file a brief. Thus, our

resolution of the case is based on counsel’s Anders brief and this court’s independent

review of the record. That independent review demonstrates the issue set out in

counsel’s Anders brief is wholly frivolous.

This court has squarely held that Hobbs Act robbery is a crime of violence

under § 924(c). United States v. Melgar-Cabrera, 892 F.3d 1053, 1060-66 (10th Cir.

2018). “[T]he fact that the defendant in Melgar-Cabrera did not provide the same or

similar argument as [the] argument here is of no moment; we are bound to follow

Melgar-Cabrera absent a contrary decision by the Supreme Court or en banc

reconsideration of Melgar-Cabrera.” United States v. Baker, 49 F.4th 1348, 1358

(10th Cir. 2022). Furthermore, as recognized in counsel’s Anders brief, the Supreme

Court’s post-Melgar-Cabrera decision in United States v. Taylor, 142 S. Ct. 2015,

2020 (2022), does not in any way call into question this court’s holding in Melgar-

Cabrera. Baker, 49 F.3d at 1360. Finally, the fact Hays pleaded guilty to aiding and

abetting Hobbs Act robbery does not create a reasonable question as to whether her

conviction qualifies as a “crime of violence” for purposes of § 924(c). See United

States v. Deiter, 890 F.3d 1203, 1214-16 (10th Cir. 2018) (holding that aiding and

abetting federal bank robbery is a “violent felony” under the elements clause of the

Armed Career Criminals Act). As Deiter makes clear, “aiding and abetting is not a

separate crime but simply eliminates the legal distinction between aiders and abettors

and principals. Therefore, it makes sense to look to the underlying statute of

conviction, rather than § 2, to decide whether the elements clause is satisfied.” Id. at

3 Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 4

1216; see also United States v. Styles, No. 19-3217, 2022 WL 34126, at *2-3 (3d Cir.

Jan. 4, 2022) (collecting cases, including this court’s decision in Deiter for the

proposition that aiding and abetting a crime of violence is itself a crime of violence

under the elements clause of § 924(c)(3)(A)).

Pursuant to the Anders mandate, this court has undertaken an independent

review of the entire record in this case. Our review demonstrates that issue raised in

counsel’s Anders brief is undeniably frivolous. Likewise, this court’s review of the

entire record reveals no other potentially meritorious issues. This is particularly true

given that the record reveals Hays validly waived her appellate rights as to all issues

except for the issue set out in counsel’s Anders brief. Accordingly, we GRANT

counsel’s motion to withdraw and DISMISS this appeal.

Entered for the Court

Michael R. Murphy Circuit Judge