FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 1, 2019
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6208
(D.C. No. 5:17-CR-00107-HE-1)
RAYMEND LEE SCOTT, JR., (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, BRISCOE and EID, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver contained in Raymend Lee Scott, Jr.’s plea agreement. We grant
defense counsel’s motion to withdraw, grant the government’s motion to enforce
Mr. Scott’s appeal waiver, and dismiss the appeal.
Mr. Scott pleaded guilty to conspiracy to possess with intent to distribute
and to distribute cocaine and fentanyl in violation of 21 U.S.C. §§ 841(a)(1), 846.
Both the written plea agreement and the Petition to Enter Plea of Guilty indicated that
the statutory maximum penalty for the offense is twenty years’ imprisonment,
*
This order and judgment is not binding precedent, except under the doctrines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.
see 21 U.S.C. § 841(b)(1)(C), but that the parties had stipulated pursuant to
Fed. R. Crim. P. 11(c)(1)(C) that the appropriate sentence was 84 months of
imprisonment. The plea agreement included a broad waiver of Mr. Scott’s appellate
rights, which provided that “[i]f [Mr. Scott] receives a sentence of 84 months of
incarceration, he waives his right to appeal his sentence, including . . . the manner in
which the sentence is determined.” Mot. to Enforce, Attach. 1 at 6.
By signing the written plea documents, Mr. Scott certified that he had
discussed the written plea documents with counsel and that he understood and
accepted the terms of the plea agreement, including the agreed-upon prison sentence
and appeal waiver. He confirmed that his plea was knowing and voluntary and that
no other promises had been made to him about sentencing.
At his change of plea hearing, Mr. Scott again confirmed that he had read and
discussed the written plea documents with counsel before signing them and assured
the court that he understood them. When the court reminded Mr. Scott that the
parties had agreed that the appropriate sentence was 84 months in prison and that he
had agreed to waive his right to appeal that sentence, he confirmed that the court’s
advisement was consistent with his understanding of the plea agreement. He told the
court that no other promises had been made to him “to get [him] to plead guilty,”
Mot. to Enforce, Attach. 2 at 17, and that he was entering his plea knowingly and
voluntarily. Mr. Scott assured the court that he understood the court’s questioning,
and when the court asked whether there was “anything at all about this proceeding
that you’re unclear about or any additional question[s] or information of any sort that
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you need or desire,” he responded “No. No, Sir.” Id. at 24. The court then accepted
Mr. Scott’s guilty plea and, at the subsequent sentencing hearing, imposed the
agreed-upon 84-month prison sentence.
Despite the broad appeal waiver in his plea agreement, Mr. Scott filed a notice
of appeal. The government moved to enforce the appeal waiver under United States
v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Citing Anders
v. California, 386 U.S. 738, 744 (1967), Mr. Scott’s counsel responded to the
government’s motion, stating that Mr. Scott has no non-frivolous argument against
enforcement of his appeal waiver and requesting permission to withdraw from
representing him. See id.
Mr. Scott then filed a pro se response to the motion to enforce in which he
requested substitute counsel. He complained about counsel’s representation of him
and about the fact that the sentence was imposed after he was removed from the
courtroom. He also maintained that the transcripts of both the change of plea and
sentencing hearing are inaccurate. But nothing in his response challenges the validity
or enforceability of his appeal waiver, and he did not file a supplemental response
despite having been given an opportunity to do so after the court denied his request
for substitute counsel.
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
enforcing the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d
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at 1325. We have reviewed the proceedings in accordance with our obligation under
Anders, see 386 U.S. at 744, and we conclude the Hahn factors have been satisfied
and that there is no non-frivolous argument to make against enforcing the appellate
waiver. Accordingly, we grant the motion to enforce and dismiss this appeal. We
also grant counsel’s motion to withdraw.
Entered for the Court
Per Curiam
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