FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 7, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-7050
(D.C. No. 6:19-CR-00034-RAW-1)
CHRISTOPHER MICHAEL WHITAKER, (E.D. Okla.)
SR., a/k/a Unc,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Christopher Michael Whitaker, Sr., pled guilty to possession with intent to
distribute methamphetamine, and was sentenced to 125 months of imprisonment. His
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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.
plea agreement contained a waiver of appellate rights. Mr. Whitaker’s counsel
nonetheless filed a notice of appeal and challenged Mr. Whitaker’s sentence.
In its response brief, the Government argued that Mr. Whitaker waived his right to
appeal his sentence. Mr. Whitaker’s counsel then filed a reply brief in accordance with
Anders v. California, 286 U.S. 738 (1967). It stated that the appeal waiver is valid and
enforceable and that Mr. Whitaker has no meritorious issue to appeal. Defense counsel
also moved to withdraw.
We agree with the parties that the appeal waiver is valid, and we enforce it against
Mr. Whitaker. Further, after a careful review of the record as required by Anders, we
find no non-frivolous grounds for appeal. Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), we grant counsel’s motion to withdraw and dismiss this appeal.
I. BACKGROUND
A. Plea and Sentence
In 2019, Mr. Whitaker entered into a plea agreement in which he agreed to plead
guilty to a one-count information charging him with possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The
agreement contained a “waiver of appellate and post-conviction rights.” ROA, Vol. I
at 80. Among other rights, he “waive[d] the right to directly appeal the conviction and
sentence.” Id. But he “reserve[d] the right to appeal from a sentence which exceeds the
statutory maximum.” Id. The district court accepted his plea.
2
The district court sentenced Mr. Whitaker to a within-Guidelines sentence of 125
months in prison, 4 years of supervised release, and a $100 special assessment.
B. Appeal
Mr. Whitaker timely filed a “Notice of his Intent to Appeal his conviction and
sentence in this case.” Id. at 210. His opening brief argued the Government “waived Mr.
Whitaker’s waiver of appeal” because it had not moved to enforce the waiver. See Aplt.
Br. at 8. He further argued “the district court violated Mr. Whitaker’s due process rights
and otherwise erred by enhancing his sentence without sufficient factual basis in the
record.” Id. at 9.
In its response brief, the Government argued that Mr. Whitaker’s “appeal must be
dismissed because he knowingly and voluntarily waived the right to appeal his conviction
and sentence as part of his written plea agreement.” Aplee. Br. at 7. It also noted that it
could enforce the waiver either by motion or in its response brief.
In reply, Mr. Whitaker’s counsel conceded that Tenth Circuit law “permit[s] the
government to seek enforcement of the appeal waiver by way of its brief.” Aplt. Reply
Br. at 1. And he “conclu[ded] that the appeal waiver at issue here is enforceable.” Id.
at 3. He further determined that “there are no non-frivolous issues for review in this
appeal.” Id. at 1. The reply brief thus was submitted “in accordance with counsel’s
3
obligations under the Supreme Court’s decision in Anders v. California, 386 U.S. 738
(1967).” Id.
Defense counsel served a copy of the Anders reply brief on Mr. Whitaker by mail.
See Aplt. Reply Br. at 10 (certificate of service). In addition, the Clerk’s office mailed an
order to Mr. Whitaker notifying him of the filing of the Anders brief, directing service on
him of the order and the briefs, and inviting him to respond by April 30, 2021. Doc. No.
10819144 at 1-3; see United States v. Leon, 476 F.3d 829, 831 (10th Cir. 2007) (per
curiam) (“The defendant may choose to submit arguments to the court in response [to an
Anders brief].”).1 Mr. Whitaker has not responded.2
II. DISCUSSION
Anders provides:
[I]f counsel finds [the defendant’s] case to be wholly
frivolous, after a conscientious examination of it, he should so
1
The docket notes the Clerk’s office sent the material by certified mail with
tracking number 7016 1370 0000 6316 1406. See Doc. No. 10819144. The publicly
available record on the USPS website shows this letter was “Delivered to Agent for Final
Delivery” on April 5, 2021, see USPS Tracking,
https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=3&text28777=&tLab
els=70161370000063161406%2C%2C&tABt=false (last accessed July 1, 2021), a fact of
which we may take judicial notice, see O’Toole v. Northrop Grumman Corp., 499 F.3d
1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of
factual information found on the world wide web.”); Fed. R. Evid. 201(b), (b)(2) (“The
court may judicially notice a fact that is not subject to reasonable dispute because it: . . .
can be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.”).
2
The Clerk’s order notifying Mr. Whitaker of the filing of the Anders brief
observed his counsel had not moved to withdraw. See 10th Cir. R. 46.3(B), 46.4(A). Mr.
Whitaker’s counsel has since moved to withdraw.
4
advise the court and request permission to withdraw. That
request must, however, be accompanied by a brief referring to
anything in the record that might arguably support the
appeal . . . . [T]he court—not counsel—then proceeds, after a
full examination of all the proceedings, to decide whether the
case is wholly frivolous. If it so finds it may grant counsel’s
request to withdraw and dismiss the appeal . . . .
386 U.S. at 744.
When counsel submits an Anders brief, we “conduct[] an independent review and
examination” of the record de novo to determine whether there are non-frivolous grounds
for appeal. See Leon, 476 F.3d at 832.
This appeal turns largely on whether the waiver of appeal in the plea agreement is
valid and enforceable. It is, and thus precludes Mr. Whitaker from presenting the
arguments in his opening brief. Further, we have detected no non-frivolous arguments
that fall outside the appellate waiver.
A. Appeal Waiver — Standard of Review and Legal Background
“Whether a defendant’s appeal waiver set forth in a plea agreement is enforceable
is a question of law we review de novo.” United States v. Ibarra-Coronel, 517 F.3d
1218, 1221 (10th Cir. 2008).
In determining whether to enforce an appeal waiver, we conduct a “three-prong
analysis” and ask “(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
5
justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per
curiam).
The Government may move to enforce an appeal waiver either by a motion or in
its merits brief. See 10th Cir. R. 27.3(A)(1)(d) (stating that the government may file “a
motion . . . to enforce an appeal waiver”); id. 27.3(A)(3)(c) (“Failure to file a timely
motion to enforce an appeal waiver does not preclude a party from raising the issue in a
merits brief.”); United States v. Clayton, 416 F.3d 1236, 1239 (10th Cir. 2005). Mr.
Whitaker’s counsel concedes this point in the Anders reply brief.
We therefore proceed to apply the Hahn factors to determine whether the appeal
waiver is valid and enforceable and, if so, whether there are any non-frivolous appeal
arguments that fall outside the scope of the waiver.
B. Appeal Waiver and Anders Analysis
Scope
The sentencing issue raised in Mr. Whitaker’s opening brief and any potential
challenge to his conviction fall within the scope of his appeal waiver. “In determining a
waiver’s scope, we will strictly construe appeal waivers and any ambiguities in these
agreements will be read against the Government and in favor of a defendant’s appellate
rights.” Hahn, 359 F.3d at 1325 (quotations and brackets omitted). But we “will hold a
defendant to the terms of a lawful plea agreement.” Id. (quotations omitted).
In his plea agreement, Mr. Whitaker unambiguously “waive[d] the right to directly
appeal the conviction and sentence,” only “reserv[ing] the right to appeal from a sentence
which exceeds the statutory maximum.” ROA, Vol. I at 80. His prison sentence falls far
6
short of the statutory maximum of 40 years and is therefore within the scope of the appeal
waiver. See 21 U.S.C. § 841(b)(1)(B).3
Knowing and Voluntary
Mr. Whitaker knowingly and voluntarily waived his appeal rights. In assessing
this factor, “[f]irst, we examine whether the language of the plea agreement states that the
defendant entered the agreement knowingly and voluntarily. Second, we look for an
adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325
(citation omitted).
First, the plea agreement contains “knowing and voluntary” language. On the first
page, it states, “The defendant agrees to voluntarily plead guilty . . . .” ROA, Vol. I at 77.
Under the heading “WAIVER OF APPELLATE AND POST-CONVICTION RIGHTS,”
it states, “the defendant knowingly and voluntarily agrees and understands the” waivers.
Id. at 80. Mr. Whitaker initialed these pages.
The conclusion of the waiver section states:
The defendant has been represented by counsel, and is fully
satisfied with the services rendered by the defense attorney(s)
and agrees that such representation has been competent legal
representation and has provided the best result for the
defendant possible under the circumstances of this case. The
defendant expressly acknowledges that counsel has explained
3
His period of supervised release and his special assessment also do not exceed
the statutory maximum. See 18 U.S.C § 3559(a), (a)(2) (defining an offense with a
“maximum term of imprisonment” of “twenty-five years or more, as a Class B felony”);
id. § 3583(b), (b)(1) (stating the “authorized term[] of supervised release” is “for a . . .
Class B felony, not more than five years”); id. § 3013(a)(2)(A) (stating the special
assessment for an individual convicted of a felony is $100).
7
defendant[’]s trial, sentencing, appellate and post-conviction
rights; that defendant understands these rights; and that
defendant knowingly and voluntarily waives and relinquishes
those rights as set forth above.
Id. at 81. Mr. Whitaker signed in full after this statement.
On the final page, under the heading “ACKNOWLEDGMENTS,” the agreement
states:
I have read this agreement and carefully reviewed every part
of it with my attorney. I fully understand it and I voluntarily
agree to it without reservation. No promises, agreements,
understandings, or conditions have been made or entered into
in connection with my decision to plead guilty except those
set forth in this plea agreement and plea supplement. I am
satisfied with the legal services provided by my attorney in
connection with this plea agreement and matters related to it.
I do this of my own free will. No threats have been made to
me, nor am I under the influence of anything that could
impede my ability to fully understand this plea agreement.
Id. at 88 (emphasis added). Both Mr. Whitaker and his counsel signed beneath these
terms.
Second, the Rule 11 colloquy was adequate. Mr. Whitaker was represented by
counsel. The district court found “that Mr. Whitaker [wa]s mentally competent to
understand and appreciate the charges against him and the nature and the consequences
of th[e] proceeding.” Id. at 117. It reviewed the charges and possible penalties,
discussed an estimate of the sentence under the United States Sentencing Guidelines, and
explained that the court would not be required to follow them. The court confirmed that
Mr. Whitaker’s “plea of guilty [was] made voluntarily and completely of [his] own free
8
choice,” id. at 124, and ensured that Mr. Whitaker understood he was waiving some of
his constitutional rights, including the right to a jury trial.
The district court reviewed the terms of the plea agreement with Mr. Whitaker,
who confirmed that he had read the plea agreement before signing and had talked with
his lawyer about anything in the agreement he did not understand. The court explained
that Mr. Whitaker could not “come back some day and say that it didn’t happen or it
happened some other way” and that he was “waiving [his] right to appeal [his] sentence.”
See id. at 130.4 It reviewed the factual basis of Mr. Whitaker’s plea and found that Mr.
Whitaker was competent to appreciate the import of his acts.
Before accepting Mr. Whitaker’s guilty plea, the court finally concluded:
Mr. Whitaker, based on your admissions, your demeanor and
your clear and responsive answers to my questions, the Court
finds that there is a factual basis for your plea of guilty and
that your plea of guilty is made voluntarily and with your
4
Mr. Whitaker’s counsel stressed that they had reviewed these waivers at length:
[Mr. Whitaker] and I have reviewed specifically . . . these
waivers, Your Honor. These are very important. And I spend
more time on that than anything else. They have to
understand what they are giving up. Waiver of Appellate and
Post-Conviction Rights, Waiver of Departure and Variance
Rights. Of course, [Mr. Whitaker] didn’t really know too
much about that once we got into this thing. We spent a lot of
time going over it. He understands it. I’ve worked really
hard to make sure that this is engrained in him. What you are
giving up, . . . and what you can’t do and what you don’t have
if you do this plea agreement. So the appellate and post-
conviction rights were important.
ROA, Vol. I at 127. The court verified that Mr. Whitaker agreed with his counsel’s
statement.
9
understanding of the charges against you and with your
knowledge of the consequences of your plea.
Id. at 136-37. Thus, Mr. Whitaker knowingly and voluntarily waived his right to appeal.
Miscarriage of Justice
Enforcing Mr. Whitaker’s appeal waiver will not result in a miscarriage of justice.
“[E]nforcement of an appellate waiver does not result in a miscarriage of justice unless
enforcement would result in one of the four situations” we have “enumerated.” Hahn,
359 F.3d at 1327; see also United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir.
2008) (“[T]hat list is exclusive.”). These situations are “[1] where the district court relied
on an impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where the
sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.”
Hahn, 359 F.3d at 1327 (brackets in original) (quotations omitted).
Mr. Whitaker’s counsel does not argue that any of these exceptions apply here.
Nor has our independent examination of the record revealed that any apply.
* * * *
In sum, the appeal waiver is enforceable here and precludes the sentencing
argument raised in the opening brief. In addition, after conducting “a full examination of
all the proceedings,” we can identify no other grounds for appeal of Mr. Whitaker’s
conviction or sentence that are not “frivolous.” See Anders, 386 U.S. at 744.
10
III. CONCLUSION
Mr. Whitaker’s appeal waiver is valid, and we enforce it against him, thus
precluding our review of the issues raised in his opening brief. Moreover, our
independent review revealed no non-frivolous grounds for reversal. We thus grant
counsel’s motion to withdraw and dismiss the appeal.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
11