United States v. Patterson

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 20, 2012
• Docket: 12-5107
• Status: Published

Opinion

Appellate Case: 12-5107 Document: 01018899477 Date Filed: 08/20/2012 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 20, 2012

Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 12-5107 (D.C. No. 4:11-CR-00149-CVE-2) CHANTZ GERMAINE PATTERSON, (N.D. Okla.) a/k/a Chantz Terrance Patterson, a/k/a Chank,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, EBEL and MATHESON, Circuit Judges.

Chantz Germaine Patterson pleaded guilty to two counts of conspiracy to

commit bank robbery, in violation of 18 U.S.C. § 371, two counts of bank robbery

with a dangerous weapon, in violation of 18 U.S.C. § 2113(a) & (d), and one count of

using, carrying, and brandishing a firearm during and in relation to a crime of

* This panel has determined that oral argument would not materially assist 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 12-5107 Document: 01018899477 Date Filed: 08/20/2012 Page: 2

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced

him to a total of 192 months in prison to be followed by three years’ supervised

release. In addition, the district court entered a restitution order in the amount of

$4,336. By plea agreement, Mr. Patterson waived the right to appeal his conviction

or sentence unless his sentence exceeded the statutory maximum. The statutory

maximum sentence for the charges of conspiracy to commit bank robbery was five

years, for the charges of bank robbery with a dangerous weapon was twenty-five

years, and for the firearm charge was life imprisonment. Notwithstanding the appeal

waiver, Mr. Patterson filed a notice of appeal.

The government has moved to enforce the appeal waiver under United States

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

Mr. Patterson’s counsel filed a motion to withdraw and an Anders brief. See Anders

v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to request permission to

withdraw where counsel conscientiously examines case and determines that appeal

would be wholly frivolous). Counsel states that there are no nonfrivolous issues

presented in the record.

Nonetheless, under Anders, we have conducted an independent review of the

plea agreement, change of plea hearing transcript, sentencing hearing transcript, and

motion to enforce. See id. After doing so, we conclude that the requirements for

enforcing the plea waiver at this time have been satisfied: (1) this “appeal falls

within the scope of the waiver of appellate rights;” (2) Mr. Patterson “knowingly and

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voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not]

result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.

This court afforded Mr. Patterson an opportunity to file a pro se response to

the motion to enforce, see Anders, 386 U.S. at 744, which he did. Mr. Patterson

contends that his attorney provided ineffective assistance of counsel in negotiating

the guilty plea and in advising him concerning the plea. That claim should be raised

in a collateral proceeding under 28 U.S.C. § 2255, rather than on direct appeal, since

the district court has not had an opportunity to develop the factual record on the

issue. See, e.g., United States v. Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir.

2008) (recognizing claim of ineffective assistance of trial counsel usually must be

raised in collateral proceeding); Hahn, 359 F.3d at 1327 & n. 13 (recognizing

ineffective assistance of counsel as exception to enforcing appellate waiver, but

reiterating longstanding rule that such claims are properly considered on collateral

review). Mr. Patterson may properly bring an ineffective assistance of counsel claim

concerning the negotiation of his appeal waiver in a collateral proceeding.

We GRANT the government’s motion to enforce the plea agreement, GRANT

counsel’s motion to withdraw, and DISMISS the appeal.

Entered for the Court Per Curiam

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