Filed: Apr. 07, 2015
Latest Update: Mar. 02, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 7, 2015 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 15-1020 (D.C. No. 1:13-CR-00444-CMA-1) STACEY ELLA MCKERN, (D. Colo.) a/k/a Michelle E. Aragon, a/k/a Stacey Aragon, Defendant - Appellant. ORDER AND JUDGMENT* Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges. Upon entering into a plea agreement that included an appeal waiver, Stacey
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 7, 2015 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 15-1020 (D.C. No. 1:13-CR-00444-CMA-1) STACEY ELLA MCKERN, (D. Colo.) a/k/a Michelle E. Aragon, a/k/a Stacey Aragon, Defendant - Appellant. ORDER AND JUDGMENT* Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges. Upon entering into a plea agreement that included an appeal waiver, Stacey E..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 7, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1020
(D.C. No. 1:13-CR-00444-CMA-1)
STACEY ELLA MCKERN, (D. Colo.)
a/k/a Michelle E. Aragon, a/k/a Stacey
Aragon,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
Upon entering into a plea agreement that included an appeal waiver, Stacey
Ella McKern pleaded guilty to bankruptcy fraud and aiding and abetting and false use
of a social security number. She was sentenced to eighteen months of imprisonment,
the top of the guidelines range. Despite the appeal waiver, she appealed. The
*
This panel has determined that oral argument would not materially assist 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
government moves to enforce the appeal waiver. See United States v. Hahn,
359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
Ms. McKern concedes that she cannot in good faith oppose the government’s
motion and make an argument as to any of Hahn’s three appeal-waiver factors:
“(1) whether the disputed appeal fails within the scope of the waiver of appellate
rights; (2) whether the defendant knowingly and voluntarily waived [her] appellate
rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.”
Id. at 1325.
We have independently reviewed the plea agreement and transcripts of the plea
and sentencing hearings, and we agree that Ms. McKern cannot in good faith oppose
enforcement of the appeal waiver. To the extent she wishes to challenge her
counsel’s performance, we also agree with her that any ineffective assistance of
counsel argument should be raised in a collateral proceeding under 28 U.S.C. § 2255.
See United States v. Galloway,
56 F.3d 1239, 1240 (10th Cir. 1995) (en banc);
see also
Hahn, 359 F.3d at 1327 n.13 (stating that holding “does not disturb [the]
longstanding rule” of generally considering ineffective-assistance claims on collateral
review). We therefore do not address an ineffective-assistance claim in this
proceeding.
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The motion to enforce is granted and this appeal is dismissed, without
prejudice to Ms. McKern raising a claim of ineffective assistance of counsel in a
collateral proceeding.
Entered for the Court
Per Curiam
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