United States of America v. Coben A. McRae

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COBEN A. MCRAE,
Defendant - Appellant.
No. 21-3173
(D.C. No. 6:16-CR-10043-JWB-1)
(D. Kan.)
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ORDER AND JUDGMENT*
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Before HARTZ, KELLY, and BACHARACH, Circuit Judges.
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Coben A. McRae has appealed from his sentence despite the appeal waiver in
his plea agreement. The government now moves to enforce that waiver under United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
McRae’s counsel responds that he is aware of no non-frivolous argument for
overcoming the waiver, and he has moved to withdraw. See Anders v. California,
386 U.S. 738, 744 (1967). We gave McRae an opportunity to file a pro se response
by January 11, 2022. When we received no response by that date, we sua sponte
* This order and judgment is not binding precedent, except under the doctrines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
February 11, 2022
Christopher M. Wolpert
Clerk of Court
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extended his deadline to February 1, 2022. As of today, the court has received
nothing.
Our first question when faced with a motion to enforce an appeal waiver is
“whether the disputed appeal falls within the scope of the waiver.” Hahn, 359 F.3d
at 1325. Here, the waiver embraces “the sentence imposed in this case, except to the
extent, if any, the [district court] imposes a sentence in excess of the sentence
recommended by the parties under [Federal Rule of Criminal Procedure]
11(c)(1)(C).” Mot. for Enf’t of Appeal Waiver, Attach. A (“Plea Agreement”) ¶ 10.
The exception does not apply because the district court adopted the parties’
sentencing recommendation. Compare id. ¶ 3 (enumerating the agreed-upon Rule
11(c)(1)(C) sentence), with R. vol. 1 at 168 (judgment). Thus, the appeal falls within
the waiver’s scope.
We next ask “whether the defendant knowingly and voluntarily waived his
appellate rights.” Hahn, 359 F.3d at 1325. Here, the plea agreement states as much,
see Plea Agreement ¶¶ 10, 15–16, and the district court confirmed as much during the
plea colloquy, see Mot. for Enf’t of Appeal Waiver, Attach. B at 38–39.
Finally, we ask “whether enforcing the waiver would result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325. We have reviewed the record and can locate no
latent argument that might satisfy this high standard. We further note that, to the
extent McRae might believe he received ineffective assistance of counsel, his appeal
waiver does not bar him from pursuing a collateral attack on that issue. See Plea
Agreement ¶ 10.
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In sum, we find this appeal falls within McRae’s appeal waiver and no other
Hahn factor counsels against enforcement of the waiver. We therefore grant
McRae’s counsel’s motion to withdraw, grant the government’s motion to enforce the
appeal waiver, and dismiss this appeal.
Entered for the Court
Per Curiam
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