United States v. Keller

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 8, 2023
• Docket: 22-1265
• Status: Unpublished

Opinion

Appellate Case: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 8, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1265 (D.C. No. 1:21-CR-00355-RM-1) ANTHONY EUGENE KELLER, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, BACHARACH and CARSON, Circuit Judges. _________________________________

Anthony Eugene Keller appeals from his prison sentence despite the appeal

waiver in his plea agreement. The government now moves to enforce that waiver, as

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

Through counsel, Keller opposes the motion. We reject his arguments and grant the

motion.

I. BACKGROUND & PROCEDURAL HISTORY

In January 2022, a grand jury in the District of Colorado indicted Keller on

one count of being a felon in possession of a firearm. He chose to accept a plea deal

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 2

offered by the government. Through that deal, he agreed to plead guilty and to waive

his right to appeal the conviction or sentence. The government, for its part, agreed

that Keller deserved a three-level reduction in his offense level for acceptance of

responsibility. It also agreed to recommend a prison sentence at the low end of the

guidelines range that the district court would eventually calculate. Following a

hearing, the district court accepted Keller’s plea.

About a week before Keller’s sentencing hearing, Keller’s retained

attorney filed a motion to withdraw, informing the court that Keller wanted a new,

court-appointed attorney. The district court addressed this motion in an ex parte

hearing immediately before the sentencing hearing. There, Keller explained that, due

to “lack of payment,” he believed his attorney had been “trying to rush through this,”

including “the Plea Agreement . . . and everything that came after.” Suppl. R. at 6.1

The district court told Keller that it would not reopen previous proceedings

(such as his plea) and it would not allow Keller to delay the sentencing process by

requesting a new attorney essentially on the eve of sentencing. The district court

gave Keller the option of going forward pro se, or a hybrid option in which his

attorney would continue to argue for him and then the court would allow Keller

himself to raise any additional arguments. Keller elected the hybrid option and the

sentencing hearing went forward, resulting in a 63-month prison sentence (the low

end of the guidelines range, as calculated by the court). This appeal followed.

1 The supplemental record is sealed, but the parties quote this portion of it in their public filings. 2 Appellate Case: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 3

II. ANALYSIS

The government’s motion to enforce would normally require us to ask three

questions: “(1) whether the disputed appeal falls within the scope of the waiver of

appellate rights; (2) whether the defendant knowingly and voluntarily waived his

appellate rights; and (3) whether enforcing the waiver would result in a miscarriage

of justice.” Hahn, 359 F.3d at 1325. But we need not address a Hahn factor the

defendant does not dispute. See United States v. Porter, 405 F.3d 1136, 1143

(10th Cir. 2005). Here, Keller explicitly concedes the first inquiry (scope of the

waiver).

As to the second inquiry (knowing and voluntary), Keller offers two

paragraphs of general principles and one paragraph explaining why this case fits

within those general principles. See Resp. at 8–9. But he then offers a fourth and

final paragraph directing the court’s attention to the hearing on the motion to

withdraw, and claiming, without elaboration, that he “raised doubt [about] the

knowing and voluntary nature of the plea itself, and therefore, specific to [the

government’s] motion, to the waiver of his appellate rights.” Id. at 9.

“[P]erfunctory complaints fail to frame and develop an issue sufficient to

invoke appellate review,” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.

1994), so we could deem this argument waived. Regardless, it is Keller’s burden to

demonstrate involuntariness. See United States v. Tanner, 721 F.3d 1231, 1233

(10th Cir. 2013). And “[a] properly conducted plea colloquy, particularly one

containing express findings, will, in most cases, be conclusive on the waiver issue, in

3 Appellate Case: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 4

spite of a defendant’s post hoc assertions to the contrary.” Id. Here, the district court

conducted a painstakingly thorough plea colloquy. The district court confirmed,

among many other things, that Keller “had enough time” to discuss the case with his

attorney and was “fully satisfied with [his] counsel,” that he signed the plea

agreement “freely and voluntarily,” that no one “pressured [him] or coerced [him], in

any way, in order to get [him] to plead,” and that he understood the appellate waiver

(including the possible exceptions). R. vol. III at 9–10, 12, 13, 14–16. At

the conclusion of the colloquy, the district court found that Keller’s plea was

“a knowing and voluntary one.” Id. at 34. Arrayed against this, Keller points to the

motion-to-withdraw hearing in which he vaguely expressed the feeling of being

“rush[ed].” Suppl. R. at 6. We hold this is not enough to overcome the district

court’s findings at the change-of-plea hearing. We therefore find that Keller’s plea

(and the appeal waiver within it) were knowing and voluntary.

As to the third Hahn factor (miscarriage of justice), Keller asserts that his trial

attorney was constitutionally ineffective. We held in Hahn that “ineffective

assistance of counsel in connection with the negotiation of the waiver” could result in

a miscarriage of justice. 359 F.3d at 1327 (internal quotation marks omitted). But

we also stated that our holding “[did] not disturb [the] longstanding rule” that,

“[g]enerally, we only consider [such] claims on collateral review.” Id. n.13.

Understanding this, Keller points us to rare cases in which we determined that an

adequate record existed to adjudicate an ineffective-assistance claim on direct appeal.

He then asserts that he tried to raise an ineffective-assistance claim during the

4 Appellate Case: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 5

hearing on his lawyer’s motion to withdraw, but the district court did not allow him

to elaborate. Therefore, he says he did not have an opportunity to try and develop the

sort of record that would allow this court to adjudicate an ineffective-assistance claim

on direct appeal, so the court should remand to allow him to develop that record.

Keller’s proposal is unprecedented and unnecessary. There is no right to

develop an ineffective-assistance record before direct appeal, nor is there any need.

A 28 U.S.C. § 2255 proceeding is more than adequate to develop any claims a

defendant may wish to bring against his or her attorney. We therefore reject this

argument and find that enforcing the appeal waiver would not create a miscarriage of

justice.

III. CONCLUSION

For all these reasons, we reject Keller’s arguments, grant the government’s

motion to enforce the appeal waiver, and dismiss this appeal.

Entered for the Court Per Curiam