Filed: Oct. 21, 2020
Latest Update: Oct. 21, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 21, 2020 _ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-8042 (D.C. No. 2:18-CR-00008-SWS-1) MELVIN EDWARD JEFFERSON, (D. Wyo.) Defendant - Appellant. _ ORDER AND JUDGMENT * _ Before BRISCOE, LUCERO, and EID, Circuit Judges. _ This matter is before the court on the government’s motion to enforce the appeal waiver in Melvin Edward Jeffer
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 21, 2020 _ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-8042 (D.C. No. 2:18-CR-00008-SWS-1) MELVIN EDWARD JEFFERSON, (D. Wyo.) Defendant - Appellant. _ ORDER AND JUDGMENT * _ Before BRISCOE, LUCERO, and EID, Circuit Judges. _ This matter is before the court on the government’s motion to enforce the appeal waiver in Melvin Edward Jeffers..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-8042
(D.C. No. 2:18-CR-00008-SWS-1)
MELVIN EDWARD JEFFERSON, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, LUCERO, and EID, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Melvin Edward Jefferson’s plea agreement. We grant defense
counsel’s motion and supplemental motion to withdraw, grant the government’s
motion to enforce Mr. Jefferson’s appeal waiver, and dismiss the appeal.
In June 2018, Mr. Jefferson pleaded guilty to robbery, in violation of
18 U.S.C. § 1951(a) (Count 1); using and brandishing a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2); and
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
*
This order and judgment is not binding precedent, except under the doctrines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.
(Count 3). Mr. Jefferson’s plea agreement contained a waiver of his appellate rights
and a limited waiver of his collateral-review rights. See R. Vol. 2 at 17-18. By
judgment entered in September 2018 and amended in October 2018, the district court
imposed consecutive sentences of (1) 66 months’ imprisonment for Counts 1 and 3;
and (2) 84 months’ imprisonment for Count 2. Mr. Jefferson did not file a notice of
appeal.
In March 2019, Mr. Jefferson filed a motion seeking to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. He raised eight claims for relief,
including claims challenging the validity of his plea agreement and a claim that his
trial counsel was ineffective for failing to file an appeal as directed. Although the
district court denied the motion on the merits, it vacated and reinstated its judgment
imposing Mr. Jefferson’s sentence “for purposes of perfecting an appeal only” and
appointed counsel “to represent him for the limited purpose of filing any notice of
appeal.” R. Vol. 1 at 89. Mr. Jefferson then filed a counseled notice of appeal.
The government has moved to enforce the appeal waiver in Mr. Jefferson’s
plea agreement under United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004)
(en banc) (per curiam). Under Hahn, 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.”
Id. at 1325. The government asserts
that all of the Hahn conditions have been satisfied: (1) Mr. Jefferson’s appeal is
within the scope of the appeal waiver because his sentence was within the range
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contemplated by the plea agreement; (2) Mr. Jefferson knowingly and voluntarily
waived his appellate rights; and (3) enforcing the waiver would not result in a
miscarriage of justice.
In response to the government’s motion, defense counsel “acknowledge[d] that
his appeal waiver is enforceable on the current record” and that “Mr. Jefferson does
not have the ability to carry his burden of proof to demonstrate otherwise.” Resp. to
Mot. to Enforce Appeal Waiver at 1. Defense counsel noted that “Mr. Jefferson
disagrees with counsel’s assessment of the case and requests that this Court give him
an opportunity to respond to the motion to enforce pro se.”
Id. Defense counsel also
moved to withdraw as counsel. See Anders v. California,
386 U.S. 738, 744 (1967).
The court entered an order providing Mr. Jefferson an opportunity to file a pro se
response to the government’s motion on or before October 9, 2020. Mr. Jefferson,
however, did not file a response.
Based on defense counsel’s concession that the appeal waiver is enforceable,
the absence of a pro se response from Mr. Jefferson, and our own independent review
of the record, see
Anders, 386 U.S. at 744, we conclude that Mr. Jefferson’s appeal
waiver is enforceable under Hahn. Accordingly, we grant defense counsel’s motion
and supplemental motion to withdraw, grant the government’s motion to enforce
Mr. Jefferson’s appeal waiver, and dismiss the appeal.
Entered for the Court
Per Curiam
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