United States v. Scott

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 1, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-6208 (D.C. No. 5:17-CR-00107-HE-1) RAYMEND LEE SCOTT, JR., (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and EID, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver contained in Raymend Lee Scott, Jr.’s plea agreement. We grant

defense counsel’s motion to withdraw, grant the government’s motion to enforce

Mr. Scott’s appeal waiver, and dismiss the appeal.

Mr. Scott pleaded guilty to conspiracy to possess with intent to distribute

and to distribute cocaine and fentanyl in violation of 21 U.S.C. §§ 841(a)(1), 846.

Both the written plea agreement and the Petition to Enter Plea of Guilty indicated that

the statutory maximum penalty for the offense is twenty years’ imprisonment,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. see 21 U.S.C. § 841(b)(1)(C), but that the parties had stipulated pursuant to

Fed. R. Crim. P. 11(c)(1)(C) that the appropriate sentence was 84 months of

imprisonment. The plea agreement included a broad waiver of Mr. Scott’s appellate

rights, which provided that “[i]f [Mr. Scott] receives a sentence of 84 months of

incarceration, he waives his right to appeal his sentence, including . . . the manner in

which the sentence is determined.” Mot. to Enforce, Attach. 1 at 6.

By signing the written plea documents, Mr. Scott certified that he had

discussed the written plea documents with counsel and that he understood and

accepted the terms of the plea agreement, including the agreed-upon prison sentence

and appeal waiver. He confirmed that his plea was knowing and voluntary and that

no other promises had been made to him about sentencing.

At his change of plea hearing, Mr. Scott again confirmed that he had read and

discussed the written plea documents with counsel before signing them and assured

the court that he understood them. When the court reminded Mr. Scott that the

parties had agreed that the appropriate sentence was 84 months in prison and that he

had agreed to waive his right to appeal that sentence, he confirmed that the court’s

advisement was consistent with his understanding of the plea agreement. He told the

court that no other promises had been made to him “to get [him] to plead guilty,”

Mot. to Enforce, Attach. 2 at 17, and that he was entering his plea knowingly and

voluntarily. Mr. Scott assured the court that he understood the court’s questioning,

and when the court asked whether there was “anything at all about this proceeding

that you’re unclear about or any additional question[s] or information of any sort that

2 you need or desire,” he responded “No. No, Sir.” Id. at 24. The court then accepted

Mr. Scott’s guilty plea and, at the subsequent sentencing hearing, imposed the

agreed-upon 84-month prison sentence.

Despite the broad appeal waiver in his plea agreement, Mr. Scott filed a notice

of appeal. The government moved to enforce the appeal waiver under United States

v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Citing Anders

v. California, 386 U.S. 738, 744 (1967), Mr. Scott’s counsel responded to the

government’s motion, stating that Mr. Scott has no non-frivolous argument against

enforcement of his appeal waiver and requesting permission to withdraw from

representing him. See id.

Mr. Scott then filed a pro se response to the motion to enforce in which he

requested substitute counsel. He complained about counsel’s representation of him

and about the fact that the sentence was imposed after he was removed from the

courtroom. He also maintained that the transcripts of both the change of plea and

sentencing hearing are inaccurate. But nothing in his response challenges the validity

or enforceability of his appeal waiver, and he did not file a supplemental response

despite having been given an opportunity to do so after the court denied his request

for substitute counsel.

In evaluating a motion to enforce, 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

3 at 1325. We have reviewed the proceedings in accordance with our obligation under

Anders, see 386 U.S. at 744, and we conclude the Hahn factors have been satisfied

and that there is no non-frivolous argument to make against enforcing the appellate

waiver. Accordingly, we grant the motion to enforce and dismiss this appeal. We

also grant counsel’s motion to withdraw.

Entered for the Court Per Curiam