United States v. Ivory

Opinion

Appellate Case: 24-3053 Document: 010111080496 Date Filed: 07/17/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 17, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-3053 (D.C. No. 2:11-CR-20108-DDC-2) JOMAR IVORY, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges. _________________________________

Jomar Ivory appeals from the district court’s imposition of an 8-month

sentence after revoking his supervised release. The Government moves to enforce an

appellate waiver contained in Mr. Ivory’s initial plea agreement.

In April 2012, Mr. Ivory pleaded guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to

94 months’ imprisonment followed by a 3-year term of supervised release. In his

plea agreement, Mr. Ivory waived the right “to appeal or collaterally attack any

matter in connection with this prosecution, the defendant’s conviction, or 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3053 Document: 010111080496 Date Filed: 07/17/2024 Page: 2

components of the sentence to be imposed herein including the length and conditions

of supervised release, as well as any sentence imposed upon a revocation of

supervised release.” Mot. to Enf., Attach. A at 9 (emphasis added).

Mr. Ivory was released from prison in 2019. In January 2021, the district court

found that he violated the terms of his supervised release and revoked it. The district

court imposed a 12-month prison sentence, and a 2-year term of supervised release.

The court also imposed a special condition for the supervised release term. Mr. Ivory

appealed, challenging the imposition of the special condition. The government

moved to enforce the appeal waiver in Mr. Ivory’s plea agreement. In response,

Mr. Ivory acknowledged that his appellate waiver prohibited him from appealing any

sentence imposed on revocation, but he argued that a special condition was not part

of his sentence. See United States v. Ivory, No. 21-3028, 2022 WL 2301640, at *2

(10th Cir. June 27, 2022). This court rejected that argument. Id. at *2, *4. It

determined that the appellate waiver was enforceable, granted the government’s

motion, and dismissed the appeal. Id. at *4.

In March 2024, the district court again found that Mr. Ivory violated the terms

of his supervised release and revoked it. The court imposed an 8-month sentence,

and no further terms of supervised release. Mr. Ivory now appeals from that

sentence, and the government moves to enforce the appeal waiver in the initial plea

agreement.

Mr. Ivory’s counsel filed a response to the motion pursuant to Anders v.

California, 386 U.S. 738, 744 (1967), stating his belief that there was no

2 Appellate Case: 24-3053 Document: 010111080496 Date Filed: 07/17/2024 Page: 3

non-frivolous basis for Mr. Ivory to challenge his revocation sentence because he had

waived his right to appeal, and this court had already upheld that appeal waiver as

enforceable in a prior appeal. Consistent with the procedure outlined in Anders, see

id., we gave Mr. Ivory the opportunity to file a pro se response to show why the

appeal waiver should not be enforced. His response was initially due on June 27,

2024, and we sua sponte extended the deadline to July 15, 2024, but to date he has

not filed a response.

We will enforce an appeal waiver if (1) “the disputed appeal falls within” the

waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate

rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.”

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). The government

argues that all three of these conditions are met in this case.

Consistent with our obligation under Anders, 386 U.S. at 744, we conducted an

independent review of the proceedings, and we agree it would be frivolous to oppose

the government’s motion. We therefore grant the government’s motion to enforce

the appeal waiver and dismiss the appeal. We also grant defense counsel’s motion to

withdraw.

Entered for the Court

Per Curiam