United States v. McRae

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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

3

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