United States v. Moreno

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 16, 2024
• Docket: 23-4102
• Status: Unpublished

Opinion

Appellate Case: 23-4102 Document: 010110983930 Date Filed: 01/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 23-4102 v. (D.C. No. 4:22-CR-00063-RJS-PK-2) (D. Utah) PATRICIA KARLEY MORENO,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BALDOCK, and ROSSMAN, Circuit Judges.** _________________________________

In November 2022, Defendant Patricia Moreno pleaded guilty to one count of

Possession of Fentanyl with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1). In

April 2023, the district court sentenced Defendant to a below Guidelines sentence of 84

months imprisonment with credit for time served. Two months later, Defendant submitted

a pro se letter to the district court stating she was not taking her psychiatric medications at

the time she pleaded guilty and therefore “did not agree to what [she] was signing.” 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** After examining the briefs and 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. Appellate Case: 23-4102 Document: 010110983930 Date Filed: 01/16/2024 Page: 2

district court retitled Defendant’s letter as a motion to withdraw her plea and denied it

under Federal Rule of Criminal Procedure 11(e) because the rule does not allow her to

withdraw her guilty plea after sentencing.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. “[A] district court may

not set aside a guilty plea after a defendant has been sentenced, except as a consequence of

a direct appeal or through a collateral proceeding.” United States v. Stang, 2023 WL

7670655, at *1 (10th Cir. 2023) (citing Fed. R. Crim. P. 11(e) (“After the court imposes

sentence, the defendant may not withdraw a plea of guilty . . . , and the plea may be set

aside only on direct appeal or collateral attack.”)). This is not a direct appeal of

Defendant’s conviction or sentence, nor can it be construed as a 28 U.S.C. § 2255 motion.

Accordingly, the district court correctly concluded it lacked jurisdiction to consider

Defendant’s motion.

Defendant also asserts for the first time on appeal that she qualifies for a retroactive

sentencing reduction under Sentencing Guidelines Amendment 821. She did not move to

reduce her sentence in the district court. As such, we have no final decision of the district

court to review and therefore lack jurisdiction to consider this issue. 28 U.S.C. § 1291;

Rekstad v. First Bank System, Inc., 238 F.3d 1259, 1261 (10th Cir. 2001) (“[a]side from a

few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals

from ‘final decisions of the district courts of the United States.’”) (emphasis in original).

For the reasons stated above, we AFFIRM the district court’s dismissal of

Defendant’s motion to withdraw her guilty plea. Furthermore, we DISMISS Defendant’s

2 Appellate Case: 23-4102 Document: 010110983930 Date Filed: 01/16/2024 Page: 3

appeal of her sentence for lack of jurisdiction.

Entered for the Court

Bobby R. Baldock Circuit Judge