United States v. Greenley

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SYCARR E. GREENLEY,

Defendant - Appellant.

No. 20-3152
(D.C. No. 6:17-CR-10096-JTM-1)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before TYMKOVICH, Chief Judge, EID and CARSON, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Sycarr E. Greenley’s plea agreement. We grant defense counsel’s
motion to withdraw, grant the government’s motion to enforce Mr. Greenley’s appeal
waiver, and dismiss the appeal.
In July 2017, a federal grand jury returned a five-count indictment against
Mr. Greenley for possession of methamphetamine with intent to distribute, 21 U.S.C.
§ 841(a)(1); possession of cocaine with intent to distribute, id.; possession of heroin
with intent to distribute, id.; possession of a firearm in furtherance of a drug

*
This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit

October 16, 2020

Christopher M. Wolpert
Clerk of Court
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trafficking crime, 18 U.S.C. § 924(c)(1)(A); and possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1). Pursuant to a written plea agreement,
Mr. Greenley pleaded guilty to being a felon in possession of a firearm, and the
government agreed to not pursue additional charges and to recommend an offense-
level reduction based on Mr. Greenley’s acceptance of responsibility. The parties
also agreed to jointly recommend a sentence of 120 months’ imprisonment to run
concurrent to a sentence on a supervised release violation. In January 2019, the
district court sentenced Mr. Greenley within the Guidelines range to 120 months’
imprisonment for the felon-in-possession charge and a concurrent sentence of
10 months’ imprisonment for the supervised release violation. The government then
dismissed the remaining four counts of the indictment.
As part of his plea agreement, Mr. Greenley agreed to waive his right to appeal
“any matter in connection with this prosecution, his conviction, or the components of
the sentence to be imposed herein” unless the court imposed a sentence above what it
determined was the applicable Guidelines range or the government appealed the
sentence imposed. R. Vol. 1 at 205. Nevertheless, in August 2019, Mr. Greenley
moved under 28 U.S.C. § 2255 to have his judgment “vacated and re-entered to allow
him to appeal from the sentence and conviction,” claiming his counsel was
ineffective for not consulting with him about an appeal and not filing a timely notice
of appeal. R. Vol. 1 at 228. In support, he submitted emails between his original
appointed counsel, who represented him in preliminary plea negotiations and a
suppression motion, and subsequent appointed counsel, who represented him through
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the plea and sentencing, indicating that: (1) the government initially offered 15 years
on a conditional plea preserving Mr. Greenley’s right to appeal and 10 years on an
unconditional plea; and (2) Mr. Greenley intended to reject the unconditional plea in
favor of the conditional plea. The government responded that “the most prudent
disposition” of the § 2255 motion would be to vacate and reinstate the judgment “so
that [Mr. Greenley’s] appellate rights may be restored, subject to the appeal-waiver in
the plea agreement.” Id. at 264. The district court granted Mr. Greenley’s motion,
concluding his second attorney either failed to comply with his directive to file an
appeal or failed to properly consult with him about an appeal. The court therefore
vacated and reinstated the judgment and appointed appellate counsel.
After Mr. Greenley filed a docketing statement indicating he intends to appeal
the denial of his suppression motion and the application of offense-level increases at
sentencing, the government filed a motion to enforce the appeal waiver under United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). In
response, Mr. Greenley’s appellate counsel cited Anders v. California, 386 U.S. 738,
744 (1967), stated that Mr. Greenley has no nonfrivolous argument against
enforcement of his appeal waiver, and moved to withdraw as counsel. We then gave
Mr. Greenley an opportunity to file a pro se response to the motion to enforce, and he
timely filed a response.
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
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enforcing the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d
at 1325. Having reviewed the proceedings in accordance with our obligation under
Anders, see 386 U.S. at 744, we conclude that the Hahn factors have been met and
that there is no non-frivolous argument to make against enforcing the appeal waiver.
As to the first Hahn factor, neither of the exceptions to the appeal waiver
applies. Specifically, the district court imposed a sentence within the applicable
Guidelines range, and the government did not appeal the sentence. Mr. Greenley’s
appeal falls squarely within the scope of the waiver.
As to the second Hahn factor, the written plea agreement and the colloquy at
the change of plea hearing confirm that Mr. Greenley knowingly and voluntarily
waived his appellate rights. He signed the plea agreement, which included a
provision that the agreement was entered “freely, voluntarily, and knowingly,” R.
Vol. 1 at 207. At the change-of-plea hearing, the court specifically explained that his
guilty plea would waive any argument regarding suppression of evidence, and
Mr. Greenley indicated he understood. The court also reviewed the appeal waiver,
and Mr. Greenley again indicated he understood. In accepting the plea, the court
found that Mr. Greenley was competent to enter an informed plea, that he was aware
of the consequences of the plea, and that the plea was knowing and voluntary.
Accordingly, the second Hahn factor is satisfied.
Finally, as to the third Hahn factor, there is no basis on this record for
concluding that enforcing the waiver would result in a miscarriage of justice.
A miscarriage of justice occurs “[1] where the district court relied on an
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impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where
the sentence exceeds the statutory maximum, or [4] the waiver is otherwise
unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks and citations omitted).
To show that an appeal waiver is “otherwise unlawful,” the defendant must prove that
the alleged error “seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted).
In his pro se response, Mr. Greenley seeks to invoke the miscarriage-of-justice
exception by claiming ineffective assistance of counsel. In particular, he relies on
the district court’s order granting his § 2255 motion and attempts to bootstrap that
ruling into the current proceeding. But contrary to his contention, the district court
did not find that his “attorney was ineffective in negotiating the plea waiver.” Def.’s
Resp. to Gov’t’s Mot. at 4. The court concluded only that his counsel failed either to
consult with him about an appeal or to file an appeal as directed. Any such appeal
still would have been subject to the appeal waiver, as the court did not invalidate the
plea agreement or the waiver. That the court ultimately vacated and reinstated the
judgment to allow Mr. Greenley to pursue an appeal does not mean he can now avoid
the appeal waiver to which he knowingly and voluntarily agreed.
In any event, we ordinarily “only consider ineffective assistance of counsel
claims on collateral review.” Hahn, 359 F.3d at 1327 n.13. “This rule applies even
where a defendant seeks to invalidate an appellate waiver based on ineffective
assistance of counsel.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.
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2005). And Mr. Greenley’s appeal waiver does not foreclose him from pursuing
“subsequent claims with regards to ineffective assistance of counsel.” R. Vol. 1
at 205.
Accordingly, we grant the government’s motion to enforce Mr. Greenley’s
appeal waiver and dismiss this appeal. We also grant defense counsel’s motion to
withdraw.
Entered for the Court
Per Curiam
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