United States v. Nitchman

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 21, 2023
• Docket: 23-8047
• Status: Unpublished

Opinion

Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 21, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-8047 (D.C. No. 1:22-CR-00080-SWS-1) GEORGE DANIEL NITCHMAN, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, PHILLIPS, and EID, Circuit Judges. _________________________________

George Daniel Nitchman pleaded guilty to possession of more than 50 grams

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and

received a 110-month prison sentence. He has appealed from that sentence. His plea

agreement contains an appeal waiver, which the government now seeks to enforce

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

(per curiam). Mr. Nitchman’s counsel responds that he is not aware of any

non-frivolous argument for overcoming the waiver, and he has moved to withdraw.

See Anders v. California, 386 U.S. 738, 744 (1967).

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 2

By letter dated September 27, 2023, this court gave Mr. Nitchman until

October 18, 2023, to file a pro se response, if desired. See Anders, 386 U.S. at 744

(“A copy of counsel’s brief should be furnished the indigent and time allowed him

to raise any points that he chooses . . . .”). He filed nothing by that date, so the court

issued a deficiency notice and directed Mr. Nitchman to file a response by November

2. His response was received on November 7. Despite its having been filed late, we

will consider Mr. Nitchman’s response as we make “a full examination of all the

proceedings[] to decide whether [opposition to the government’s motion] is wholly

frivolous.” Id.

In evaluating a motion to enforce an appellate waiver, we consider:

“(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.

The record shows that each of these factors is satisfied. First, Mr. Nitchman’s

appeal is within the scope of the waiver. On appeal, he seeks to challenge the base

offense level the district court used to determine the applicable Sentencing

Guidelines range. Pro Se Resp. at 1. But the plea agreement stated that

Mr. Nitchman waived his right to appeal, among other things, “any matter in

connection with . . . the components of his sentence,” unless his sentence exceeded

2 Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 3

the applicable advisory Sentencing Guidelines range.1 Mot. to Enforce at 3. Because

Mr. Nitchman’s sentence was well within the advisory Guidelines range, he has

waived the right to challenge it.

Second, the plea agreement clearly sets forth that the waiver was knowing and

voluntary, and during the change of plea hearing the district court confirmed

Mr. Nitchman’s understanding that his guilty plea would result in his waiving his

appellate rights. See Hahn, 359 F.3d at 1325 (on second factor, the court looks to

whether the plea agreement states the waiver was knowing and voluntary and whether

there was a sufficient Federal Rule of Criminal Procedure 11 colloquy). Mr. Nitchman

does not argue otherwise. See United States v. Porter, 405 F.3d 1136, 1143

(10th Cir. 2005) (where defendant does not contest the district court’s determination

that he knowingly and voluntarily waived his appellate rights, the court need not

address the issue).

Finally, we see no risk of a miscarriage of justice if the appellate waiver is

enforced. A miscarriage of justice occurs only:

[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.

1 The waiver also contemplated that Mr. Nitchman could raise claims of ineffective assistance of counsel or prosecutorial misconduct under 28 U.S.C. § 2255, or seek a sentence reduction under 18 U.S.C. § 3582(c). These exceptions do not apply here. Mr. Nitchman’s response indicates that he believes his attorney provided ineffective assistance, but such “claims should be brought in collateral proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). 3 Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 4

Hahn, 359 F.3d at 1327 (internal quotation marks omitted). None of these situations

is applicable. First, there is no evidence that Mr. Nitchman’s race or another

impermissible factor had anything to do with his sentence. Second, although

Mr. Nitchman has complained about his counsel’s performance, nothing at this stage

of the proceedings indicates he received ineffective assistance in connection with the

negotiation of the waiver. Indeed, under the original charges Mr. Nitchman faced a

possible sentence of up to 40 years, but his counsel negotiated a plea deal resulting in

a much lower sentence (slightly over 9 years) that was at the bottom of the range

called for by the Sentencing Guidelines. Third, Mr. Nitchman’s sentence did not

exceed the 40-year statutory maximum. See 21 U.S.C. § 841(b)(1)(B). Fourth, there

is no indication that Mr. Nitchman’s waiver is “otherwise unlawful.” Hahn, 359 F.3d

at 1327. In short, we find the enforcement of Mr. Nitchman’s appellate waiver would

not result in a miscarriage of justice as defined by Hahn.

We therefore grant 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