United States v. Reed

Opinion

Appellate Case: 22-1008 Document: 010110722758 Date Filed: 08/10/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 10, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1008 (D.C. No. 1:21-CR-00142-CMA-1) FANICE ANDREA REED, (D. Colo.) a/k/a Fanice Jones,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Fanice Andrea Reed pleaded guilty to theft or conversion of government

property in violation of 18 U.S.C. § 641. She was sentenced to serve 27 months in

prison. Although her plea agreement contained a waiver of her appellate rights, she

filed a notice of appeal. The government has moved to enforce the appeal waiver in

the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(en banc) (per curiam).

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-1008 Document: 010110722758 Date Filed: 08/10/2022 Page: 2

Under Hahn, 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 [her] appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the

Hahn conditions have been satisfied.

Appellate counsel for Ms. Reed filed a response and motion to withdraw

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), conceding “that any

appeal [including any opposition to the Motion to Enforce] would be wholly

frivolous.” Resp. at 1 (internal quotation marks omitted). Ms. Reed has also filed a

brief pro se response in which she expresses dissatisfaction with trial counsel’s

representation, but acknowledges that “to move forward” with an ineffective

assistance of counsel claim, “[she] would need to file a [28 U.S.C. §] 2255 [motion]”

in district court. Pro Se Resp. at 1. She does not offer any arguments in response to

the government’s motion to enforce or otherwise challenge her appellate counsel’s

determination that any opposition to the motion to enforce would be frivolous.

Based on counsel’s and Ms. Reed’s concessions and our independent review of

the record, we grant counsel’s motion to withdraw, grant the government’s motion to

enforce the appeal waiver, and dismiss the appeal. This dismissal does not affect

Ms. Reed’s right to pursue post-conviction relief on the grounds permitted in her plea

agreement.

Entered for the Court Per Curiam