United States v. McRae

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 11, 2022
• Docket: 21-3173
• Status: Unpublished

Opinion

Appellate Case: 21-3173 Document: 010110644014 Date Filed: 02/11/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 11, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-3173 (D.C. No. 6:16-CR-10043-JWB-1) COBEN A. MCRAE, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and BACHARACH, Circuit Judges. _________________________________

Coben A. McRae has appealed from his sentence despite the appeal waiver in

his plea agreement. The government now moves to enforce that waiver under United

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

McRae’s counsel responds that he is aware of no non-frivolous argument for

overcoming the waiver, and he has moved to withdraw. See Anders v. California,

386 U.S. 738, 744 (1967). We gave McRae an opportunity to file a pro se response

by January 11, 2022. When we received no response by that date, we sua sponte

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-3173 Document: 010110644014 Date Filed: 02/11/2022 Page: 2

extended his deadline to February 1, 2022. As of today, the court has received

nothing.

Our first question when faced with a motion to enforce an appeal waiver is

“whether the disputed appeal falls within the scope of the waiver.” Hahn, 359 F.3d

at 1325. Here, the waiver embraces “the sentence imposed in this case, except to the

extent, if any, the [district court] imposes a sentence in excess of the sentence

recommended by the parties under [Federal Rule of Criminal Procedure]

11(c)(1)(C).” Mot. for Enf’t of Appeal Waiver, Attach. A (“Plea Agreement”) ¶ 10.

The exception does not apply because the district court adopted the parties’

sentencing recommendation. Compare id. ¶ 3 (enumerating the agreed-upon Rule

11(c)(1)(C) sentence), with R. vol. 1 at 168 (judgment). Thus, the appeal falls within

the waiver’s scope.

We next ask “whether the defendant knowingly and voluntarily waived his

appellate rights.” Hahn, 359 F.3d at 1325. Here, the plea agreement states as much,

see Plea Agreement ¶¶ 10, 15–16, and the district court confirmed as much during the

plea colloquy, see Mot. for Enf’t of Appeal Waiver, Attach. B at 38–39.

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

justice.” Hahn, 359 F.3d at 1325. We have reviewed the record and can locate no

latent argument that might satisfy this high standard. We further note that, to the

extent McRae might believe he received ineffective assistance of counsel, his appeal

waiver does not bar him from pursuing a collateral attack on that issue. See Plea

Agreement ¶ 10.

2 Appellate Case: 21-3173 Document: 010110644014 Date Filed: 02/11/2022 Page: 3

In sum, we find this appeal falls within McRae’s appeal waiver and no other

Hahn factor counsels against enforcement of the waiver. We therefore grant

McRae’s counsel’s motion to withdraw, grant the government’s motion to enforce the

appeal waiver, and dismiss this appeal.

Entered for the Court Per Curiam