F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 29, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-3208
v. (D.C. No. 03-CR-20071-GTV)
(D. Kan.)
ADIS G. STULTS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY and HENRY, Circuit Judges.
Adis Stults (“Defendant”) pled guilty to one count of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and received a sentence of 18
months’ imprisonment. Defendant then filed the instant appeal, challenging
various aspects of his conviction and sentence. Taking jurisdiction pursuant to 18
U.S.C. § 3742 and 28 U.S.C. § 1291, we AFFIRM.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
On December 12, 2002, Defendant pled guilty in Kansas state court to
possession of cocaine, a felony punishable by imprisonment exceeding one year.
His sentencing was set for February 20, 2003. On January 23, 2003, state law
enforcement officers executed a search warrant at defendant’s home and found
three firearms, which Defendant acknowledged were his. Each firearm was
manufactured outside of the state of Kansas and thus had traveled in interstate
commerce.
On May 29, 2003, the Federal Grand Jury for the District of Kansas issued
a three-count indictment against Defendant. Count one charged Defendant with
possession of a firearm by a person who is an unlawful user of and is addicted to
a controlled substance, pursuant to 18 U.S.C. § 922(g)(3). Count two charged
Defendant with possession of a firearm by a previously convicted felon, pursuant
to 18 U.S.C. § 922(g)(1). Count three charged Defendant with possessing a
firearm while under a felony charge in state court, pursuant to 18 U.S.C. § 922(n).
As part of his defense, Defendant intended to adduce evidence at trial
showing that: (1) the state court judge never informed Defendant that he could not
possess firearms after his guilty plea but before his sentence was imposed; and (2)
a state probation officer told Defendant that he did not need to dispose of the
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guns until after sentencing. The Government moved in limine to exclude this
evidence as irrelevant and prejudicial, see Fed. R. Evid. 402, 403, and the district
court granted the motion.
Defendant then entered into a plea agreement with the Government whereby
he agreed to plead guilty to count two of the indictment (felon-in-possession) in
exchange for the Government’s agreement to dismiss the other two counts of the
indictment and to recommend a two-point offense level reduction for acceptance
of responsibility at sentencing. As a condition of this plea, however, Defendant
specifically preserved his right to appeal the District Court’s decision to grant the
Government’s motion in limine. Apart from this one condition, however,
Defendant specifically waived all other grounds of appeal and post-conviction
relief relating to his sentence.
At sentencing, Defendant moved for a downward departure, which the
district court denied. The court ultimately sentenced Defendant to 18 months in
prison, followed by two years’ supervised release, which was at the low end of
the applicable guidelines range. The instant appeal followed.
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DISCUSSION
I. Scope of issues on appeal
At the outset, we conclude that nearly all of the arguments Defendant raises
in his opening and reply briefs have been waived by virtue of his plea agreement
in the instant case, in which he stipulates:
By entering into this agreement, the defendant knowingly waives any
right to appeal the sentence imposed which is within the guideline
range determined appropriate by the court. The defendant does
reserve the right pursuant to Rule 11(a)(2) of the Federal Rules of
Criminal Procedure to appeal the District Court’s decision of
February 10, 2004, granting the “Motion in Limine” filed by United
States on February 4, 2004.
A conditional plea agreement filed pursuant to Fed. R. Crim. P. 11(a)(2) “must
specifically mention any argument that is to be preserved for appeal.” United
States v. Anderson, 374 F.3d 955, 958 (10th Cir. 2004)
In his opening brief (which was written with the benefit of counsel),
Defendant raises three issues: First, Defendant argues that he was not a “felon” in
possession of a firearm because the instant offense occurred before the state court
issued a sentence in the underlying felony. Second, Defendant challenges the
district court’s decision to grant the Government’s motion in limine. Third,
Defendant appeals the district court’s decision to deny his motion for a downward
departure.
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The text of the agreement specifically waives any and all appeals relating to
the sentence, so long as that sentence was imposed within the applicable
guidelines range. Thus, Defendant’s argument regarding the denial of his
downward departure is waived. 1 As for Defendant’s challenge to his conviction
that he was not a “felon” because the instant offense occurred before he was
sentenced for the underlying felony, the conditional plea agreement is clear that
this issue was not properly preserved for appeal. Since the instant plea agreement
does not reserve the right to appeal the question of whether Defendant was a
“felon” within the meaning of the statute, Defendant may not now raise that issue
on appeal. Thus, the only issue contained in Defendant’s opening brief that is not
waived pursuant to the plea agreement is his challenge to the Government’s
motion in limine.
After submitting his opening brief, Defendant chose to proceed pro se and
submitted his own reply brief in which he raised four additional issues. 2 First,
Defendant challenged the jurisdiction of the district court by arguing that his
1
In any event, even if this argument were not waived, this court does not
ordinarily have jurisdiction to consider a district court’s denial of a downward
departure. United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998).
2
Although we do not ordinarily consider new issues raised in a reply brief,
see Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000), here we note that
Defendant’s “reply brief” is the first and only brief submitted after Defendant
chose to proceed pro se. Thus, we construe this brief simply as a supplement to
the opening brief and not as a reply to Appellee’s answer brief.
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actions were outside the scope of the applicable statute, which requires that the
firearms be possessed “in or affecting commerce.” 18 U.S.C. § 922(g)(1).
Second, Defendant argued that his guns were part of a private collection and
therefore exempt from federal oversight. Third, Defendant argued that his trial
counsel was constitutionally ineffective. Finally, Defendant maintained that
venue in federal court was improper.
The issues relating to private gun collections and venue are clearly waived
under the terms of the plea agreement. Because Defendant’s argument regarding
commerce is jurisdictional, however, we will consider that issue. See United
States v. Broce, 488 U.S. 563, 569 (1989) (guilty plea does not waive defects as
to jurisdiction).
Defendant’s argument with regard to ineffective assistance of counsel is
slightly more complicated. We have held that a defendant’s waiver of appellate
rights may not be used to deny review of a claim that the agreement was entered
into with ineffective assistance of counsel. United States v. Black, 201 F.3d
1296, 1301 (10th Cir. 2000). Thus, Defendant’s ineffective assistance claim
could not have been waived by his plea agreement, to the extent that the claim is
related to the plea agreement. The question then becomes whether Defendant’s
ineffective assistance argument is actually related to the plea agreement. As the
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following section from Defendant’s pro se brief indicates, the answer to that
question is not entirely clear:
Carl Cornwall was ineffective counsel. [Appellee’s] Brief
concedes this is so (page 4, top). Carl neither raised the issue nor
preserved it for appeal.
Again, [United States Attorney] Melgren is focussed [sic] on
the time of conviction as removing rights. Rights don’t get removed
but on an order of a judge at sentencing. Carl couldn’t see that.
Melgren doesn’t see it either. Melgren restates Carl’s erroneous
claim the defendant wasn’t convicted until sentencing. Wrong.
What’s right is, defendant didn’t lose his rights until sentencing.
State v. Holmes must be overturned, and all the cases that built upon
that judicial principle’s mistake.
The only ineffective assistance claim we can discern here is an allegation that
Defendant’s attorney misunderstood the law and, therefore, failed to advise his
client properly during the plea negotiations. Under Black, Such a claim would
not be waived by the plea agreement. 201 F.3d at 1301.
However, it is also well established that we do not ordinarily consider
ineffective assistance of counsel claims on direct appeal; rather the proper venue
for such claims is on collateral attack. United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995) (en banc). The reason for this rule is that a
factual record must be developed in and addressed by the district
court in the first instance for effective review. Even if evidence is
not necessary, at the very least counsel accused of deficient
performance can explain their reasoning and actions, and the district
court can render its opinion on the merits of the claim.
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Id. Thus, although Black protects an ineffective counsel claim raised on direct
appeal from a waiver of appellate rights in a plea agreement, the decision does
not alter the independent rule stated in Galloway that the appropriate vehicle for
such claims is collateral attack. There are, of course, some cases in which an
ineffectiveness of counsel claim may need no further development prior to review
on direct appeal. Galloway, 56 F.3d at 1240. It is in those “rare instances” that
we will hear such a claim on direct review. Id.
If Defendant’s ineffective assistance argument is indeed grounded on the
nature and quality of Counsel’s legal advice during the plea negotiations, we have
no factual record upon which to evaluate this claim. This case is not one of the
“rare instances” in which we will permit an exception to the rule in Galloway.
See 56 F.3d at 1240. Accordingly, we decline to hear the ineffective assistance of
counsel claim at this time.
To summarize, of the seven issues raised in Defendant’s opening and reply
briefs, only two are properly before this court: (1) whether the district court
lacked jurisdiction because Defendant’s actions were not “in or affecting
commerce”; and (2) whether the district court properly granted the Government’s
motion in limine.
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II. “In or affecting commerce”
Defendant’s jurisdictional argument merits only a brief discussion. Under
18 U.S.C. § 922(g)(1), it is unlawful for a previously convicted felon to possess a
firearm only if that firearm was “in or affecting commerce.” If this element were
not proven, federal courts would lack jurisdiction to punish Defendant’s gun
possession under the Commerce Clause of the Constitution. See U.S. Const., art.
I, § 8, cl. 3. However, in his plea agreement, Defendant admitted that “none of
the firearms [seized by police] had been manufactured in Kansas. Accordingly,
all three of the firearms had traveled in interstate commerce.” (Aplt. App. at 25.)
Defendant’s admission in the plea agreement satisfies the jurisdictional
prerequisite of 18 U.S.C. § 922(g)(1), hence the district court had subject matter
jurisdiction over the instant case.
III. Motion in limine
Ordinarily, a district court’s grant of a motion in limine is reviewed for an
abuse of discretion. United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1164
(10th Cir. 1999). Here, the district court’s decision had the effect of excluding
one of the defense’s potential theories of the case: entrapment by estoppel. As in
Gutierrez-Gonzalez, the district court’s decision here to exclude the disputed
evidence was grounded in a conclusion that entrapment by estoppel, as a matter of
law, did not apply to the situation before the court. In such cases, “[w]hether
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there is sufficient evidence to constitute a triable issue of entrapment by estoppel
is a question of law” that we review de novo. Gutierrez-Gonzalez, 184 F.3d at
1164.
In United States v. Nichols, 21 F.3d 1016 (10th Cir.1994), we set forth the
elements of entrapment by estoppel.
The defense of entrapment by estoppel is implicated where an agent
of the government affirmatively misleads a party as to the state of the
law and that party proceeds to act on the misrepresentation so that
criminal prosecution of the actor implicates due process concerns
under the Fifth and Fourteenth amendments. There must be an
“active misleading” by the government agent, and actual reliance by
the defendant. Further, the defendant's reliance must be reasonable
in light of the identity of the agent, the point of law misrepresented,
and the substance of the misrepresentation.
Id. at 1018. Several years later, in Guiterrez-Gonzalez, we further clarified this
test by holding that “the defense of entrapment by estoppel requires that the
‘government agent’ be a government official or agency responsible for
interpreting, administering, or enforcing the law defining the offense.” 184 F.3d
at 1167. In support of this proposition, we cited favorably the Fourth Circuit case
of United States v. Etheridge, 932 F.2d 318 (4th Cir. 1991), where the court held
that advice from a state court judge to a felon that he could hunt with a gun was
not a defense to felony possession charges because “the government that advises
and the government that prosecutes is not the same.” Id. at 321.
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The instant case is similar to Ethridge since here the “advice” given (or
lack thereof) was given by a state probation officer and a state judge, not a
federal official. Etheridge and Guiterrez both indicate that this evidence could
not create a triable issue of entrapment by estoppel. As a result, we conclude that
the district court did not abuse its discretion by excluding the disputed evidence.
CONCLUSION
With the exception of jurisdictional issues and the ineffective assistance of
counsel claim, we conclude that the portion of Defendant’s appeal which does not
directly address the district court’s decision to grant the Government’s motion in
limine is waived. The ineffective assistance claim, though not waived, is
nevertheless inappropriate for review on direct appeal under Galloway, 56 F.3d at
1240. Finally, satisfied that the jurisdictional challenge is without merit, we
AFFIRM the district court’s denial of the motion in limine, and therefore,
Defendant’s conviction.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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