United States v. Schmid

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 1, 2022
• Docket: 21-1402
• Status: Unpublished

Opinion

Appellate Case: 21-1402 Document: 010110691490 Date Filed: 06/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-1402 (D.C. No. 1:18-CR-00202-CMA-GPG-2) ANGELA SCHMID, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________

Angela Schmid pleaded guilty to distributing five grams or more of

methamphetamine. Her plea agreement required her to waive her right to appeal.

Yet she has filed this appeal.1 The government moves to enforce the appeal waiver

and to dismiss the appeal. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.

2004) (en banc) (per curiam). Ms. Schmid opposes the motion. We grant it.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Ms. Schmid represents herself, so we construe her filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Appellate Case: 21-1402 Document: 010110691490 Date Filed: 06/01/2022 Page: 2

We will enforce an appeal waiver if (1) the appeal falls within the waiver’s

scope; (2) the defendant waived the right to appeal knowingly and voluntarily; and

(3) enforcing the waiver would not “result in a miscarriage of justice.” Id. at 1325.

Scope of the waiver. Ms. Schmid would argue on appeal that the district court

should have held a hearing on her claim of prosecutorial misconduct. She also would

challenge the denials of her motion for “permission to submit a global Statement of

Facts,” R. vol. 1 at 19, her motion to continue trial, her motion to withdraw her guilty

plea, and her motion to dismiss. These issues all fit within the scope of her waiver of

“the right to appeal any matter in connection with this prosecution, conviction, or

sentence.”2 Mot. to Enforce, Attach. 1 at 2.

Ms. Schmid’s arguments do not show otherwise. She points to a provision of

her plea agreement permitting her to seek “relief otherwise available in a collateral

attack” on the ground that she “was prejudiced by prosecutorial misconduct.” Id.

But this is not a collateral attack; it is a direct appeal. And, contrary to Ms. Schmid’s

contention, the fact that the district court denied her motion to dismiss after she

entered her plea does not remove that ruling from the scope of her appeal waiver.

See Hahn, 359 F.3d at 1326 (“It is true that when a defendant waives his right to

appeal, he does not know with specificity what claims of error, if any, he is

[forgoing].”).

2 Ms. Schmid’s docketing statement says that she would argue on appeal that Title 21 of the United States Code is unconstitutional as applied to her. But she does not mention this argument in her response to the government’s motion to enforce the appeal waiver. In any event, this argument too fits within the scope of the waiver. 2 Appellate Case: 21-1402 Document: 010110691490 Date Filed: 06/01/2022 Page: 3

Knowing and voluntary waiver. Although Ms. Schmid labels it “irrelevant”

whether she entered the plea agreement knowingly and voluntarily, Resp. at 5, she

also says that the denial of her motion to continue trial coerced her to plead guilty.

Construed liberally, then, Ms. Schmid’s response challenges the voluntariness of her

plea. And if she “did not voluntarily enter into the agreement, the appellate waiver

subsumed in the agreement also cannot stand.” United States v. Rollings, 751 F.3d

1183, 1189 (10th Cir. 2014). She also says that she thought her plea agreement

would allow her to pursue a prosecutorial-misconduct claim on direct appeal, a

statement we construe as a claim that she did not knowingly waive her right to

appeal.

To assess whether a waiver was knowing and voluntary, we typically focus on

two factors: “whether the language of the plea agreement states that the defendant

entered the agreement knowingly and voluntarily” and whether the district court

conducted “an adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn,

359 F.3d at 1325. “[E]ither the express language of the plea agreement, if

sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper

Rule 11 colloquy could be enough to conclude the waiver was knowing and

voluntary. But the synergistic effect of both will often be conclusive.” United States

v. Tanner, 721 F.3d 1231, 1234 (10th Cir. 2013) (per curiam). The defendant has the

burden to show that a waiver was not knowing and voluntary. Id. at 1233.

Ms. Schmid’s plea agreement says explicitly that she knowingly and

voluntarily waived her right to appeal. During the plea colloquy, she confirmed that

3 Appellate Case: 21-1402 Document: 010110691490 Date Filed: 06/01/2022 Page: 4

the agreement contained an appeal waiver. She said that she understood the

consequences of entering a guilty plea. And she denied that anyone forced her to

plead guilty or attempted in any way to threaten her to force her to plead guilty. The

district court found that she understood the terms of the plea agreement and that she

entered her plea knowingly and voluntarily. All of this evidence shows that

Ms. Schmid knowingly and voluntarily entered her plea and waived her right to

The district court did not coerce Ms. Schmid to plead guilty by denying her

motion to continue trial. “The longstanding test for determining the validity of a

guilty plea is whether the plea represents a voluntary and intelligent choice among

the alternative courses of action open to the defendant.” Hill v. Lockhart, 474 U.S.

52, 56 (1985) (internal quotation marks omitted). To be sure, the court’s denial of a

continuance defined the options available to Ms. Schmid: She had to decide whether

to proceed to trial as scheduled and retain the right to appeal any conviction (and, of

course, to challenge the ruling on her motion to continue) or whether to plead guilty

and waive the right to appeal. But we have no reason to think her choice between

those options was involuntary or unintelligent; the plea colloquy shows just the

opposite.

Nor has Ms. Schmid shown that she did not knowingly waive her right to

appeal. The language of her waiver is clear. That she understood it is reinforced by

her statements and the court’s findings during the plea colloquy. And this evidence

withstands her current claim that she misunderstood the waiver. See Tanner,

4 Appellate Case: 21-1402 Document: 010110691490 Date Filed: 06/01/2022 Page: 5

721 F.3d at 1233 (“A properly conducted plea colloquy, particularly one containing

express findings, will, in most cases, be conclusive on the waiver issue, in spite of a

defendant’s post hoc assertions to the contrary.”).

Miscarriage of justice. Ms. Schmid does not contest the government’s

position on this factor, so we need not address it. See United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005). That said, we see nothing suggesting that

enforcing the appeal waiver will result in a miscarriage of justice, as Hahn defines

that phrase. See 359 F.3d at 1327.

* * *

We grant the government’s motion to enforce the appeal waiver. We dismiss

this appeal.

Entered for the Court Per Curiam