United States v. Watkins

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 22, 2025
• Docket: 24-6065
• Status: Unpublished

Opinion

Appellate Case: 24-6065 Document: 41-1 Date Filed: 05/22/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 22, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-6065 (D.C. No. 5:22-CR-00428-SLP-1) TYLER DON WATKINS, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and CARSON, Circuit Judges. _________________________________

Defendant Tyler Don Watkins pled guilty to one count of being an unlawful

user of a controlled substance in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(3). Defendant’s plea agreement contained a provision that limited his right

to appeal his conviction or sentence unless the sentence imposed fell outside

specified parameters, such as the United States Sentencing Guideline (U.S.S.G.)

range:

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-6065 Document: 41-1 Date Filed: 05/22/2025 Page: 2

Defendant waives the right to appeal Defendant’s sentence, including any restitution, and the manner in which the sentence is determined, including its procedural reasonableness. If the sentence is above the advisory Guidelines range determined by the court to apply to Defendant’s case, this waiver does not include Defendant’s right to appeal the substantive reasonableness of Defendant’s sentence. The plea agreement also limited Defendant’s right to collaterally challenge or move

to modify his conviction or sentence, except for claims based on ineffective

assistance of counsel.

During the plea hearing, the district court asked Defendant, among other

questions, if he understood that by signing the plea agreement he agreed to waive his

right to appeal or collaterally challenge his sentence “except in some very limited

circumstances that are laid out in the plea agreement.” He responded, “[y]es, your

Honor.” The district court then asked him if he fully understood the nature of the

charges against him, the possible punishment he faced, and the constitutional rights

that he was entitled to and was waiving, “including the right to appeal.” Defendant

again responded, “[y]es, your Honor.”

Defendant’s presentence report (PSR) calculated an offense level of 29 and a

criminal history category of II, resulting in a Guideline range of 97–121 months’

imprisonment. The district court denied Defendant’s motion for a downward

variance and sentenced him to a term of 97 months’ imprisonment.

After Defendant timely filed his appeal, his attorney filed an Anders brief,

asserting that the appeal lacked any meritorious basis and moved to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744–45 (1967); see also United

2 Appellate Case: 24-6065 Document: 41-1 Date Filed: 05/22/2025 Page: 3

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (explaining that under Anders,

counsel may “request permission to withdraw where counsel conscientiously

examines a case and determines that any appeal would be wholly frivolous”).

Defendant received notice of counsel’s Anders brief but chose not to respond. The

government also declined to file a response brief.

Under Anders, this court must “conduct a full examination of the record to

determine whether defendant’s claims are wholly frivolous.” Calderon, 428 F.3d

at 930 (quoting Anders, 386 U.S. at 744). “If the court concludes after such an

examination that the appeal is frivolous, it may grant counsel’s motion to withdraw

and may dismiss the appeal.” Id.

In his Docketing Statement, Defendant identified the issue he raises on appeal:

“Defendant believes this sentence was unreasonable.” As outlined above, Defendant

waived his right to appeal the substantive reasonableness of his sentence unless the

sentence “is above the advisory Guidelines determined by the Court to apply to

Defendant’s case.” Thus, Defendant may avoid the plea agreement’s appellate

waiver only if his sentence was above the acceptable Guideline range.

The district court determined that the Guideline for a violation of 18 U.S.C.

§ 922(g)(3) is U.S.S.G. § 2K2.1. Because Defendant possessed semiautomatic

firearms capable of accepting a large capacity magazine and was a prohibited person

described in 18 U.S.C. § 922(g), the PSR calculated a base offense level of 20. After

adjusting for Defendant’s special offense characteristics, as well as his acceptance of

responsibility, the PSR calculated a total offense level of 29. Considering his total

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offense level of 29 and his criminal history category of II, the PSR calculated his

Guideline imprisonment range as 97 months to 121 months.

The district court adopted the PSR’s calculations during sentencing and

imposed upon Defendant a sentence of 97 months’ imprisonment. This sentence is

within the properly calculated Sentencing Guideline range, and besides stating that

his “sentence was unreasonable” in his Docketing Statement, Defendant does not

argue otherwise. We also detect no issues with Defendant’s plea agreement or the

plea colloquy. Because Defendant’s sentence is within the Guideline range,

Defendant’s plea agreement precludes his right to appeal his sentence.

The waiver provision of Defendant’s plea agreement precludes Defendant’s

appeal, and because none of its exceptions apply, we conclude that any appellate

challenges would be frivolous. Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we grant counsel’s motion to withdraw and dismiss Defendant’s

appeal.1

Entered for the Court

Joel M. Carson III Circuit Judge

1 In her brief, Defendant’s counsel has identified only one conceivable basis for avoiding the appeal waiver: ineffective assistance of counsel. But Defendant did not claim ineffective assistance of counsel in his Docketing Notice, and counsel’s errors, if any, are not “plain from the record.” United States v. Novosel, 481 F.3d 1288, 1295 (10th Cir. 2007). Here, “any ineffective assistance claim would have to rely on extra-record exchanges between counsel and client that are beyond our purview.” Id. 4