Appellate Case: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 8, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1265
(D.C. No. 1:21-CR-00355-RM-1)
ANTHONY EUGENE KELLER, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, Chief Judge, BACHARACH and CARSON, Circuit Judges.
_________________________________
Anthony Eugene Keller appeals from his prison sentence despite the appeal
waiver in his plea agreement. The government now moves to enforce that waiver, as
permitted by United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc).
Through counsel, Keller opposes the motion. We reject his arguments and grant the
motion.
I. BACKGROUND & PROCEDURAL HISTORY
In January 2022, a grand jury in the District of Colorado indicted Keller on
one count of being a felon in possession of a firearm. He chose to accept a plea deal
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 22-1265 Document: 010110823277 Date Filed: 03/08/2023 Page: 2
offered by the government. Through that deal, he agreed to plead guilty and to waive
his right to appeal the conviction or sentence. The government, for its part, agreed
that Keller deserved a three-level reduction in his offense level for acceptance of
responsibility. It also agreed to recommend a prison sentence at the low end of the
guidelines range that the district court would eventually calculate. Following a
hearing, the district court accepted Keller’s plea.
About a week before Keller’s sentencing hearing, Keller’s retained
attorney filed a motion to withdraw, informing the court that Keller wanted a new,
court-appointed attorney. The district court addressed this motion in an ex parte
hearing immediately before the sentencing hearing. There, Keller explained that, due
to “lack of payment,” he believed his attorney had been “trying to rush through this,”
including “the Plea Agreement . . . and everything that came after.” Suppl. R. at 6.1
The district court told Keller that it would not reopen previous proceedings
(such as his plea) and it would not allow Keller to delay the sentencing process by
requesting a new attorney essentially on the eve of sentencing. The district court
gave Keller the option of going forward pro se, or a hybrid option in which his
attorney would continue to argue for him and then the court would allow Keller
himself to raise any additional arguments. Keller elected the hybrid option and the
sentencing hearing went forward, resulting in a 63-month prison sentence (the low
end of the guidelines range, as calculated by the court). This appeal followed.
1
The supplemental record is sealed, but the parties quote this portion of it in
their public filings.
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II. ANALYSIS
The government’s motion to enforce would normally require us to ask three
questions: “(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 at 1325. But we need not address a Hahn factor the
defendant does not dispute. See United States v. Porter, 405 F.3d 1136, 1143
(10th Cir. 2005). Here, Keller explicitly concedes the first inquiry (scope of the
waiver).
As to the second inquiry (knowing and voluntary), Keller offers two
paragraphs of general principles and one paragraph explaining why this case fits
within those general principles. See Resp. at 8–9. But he then offers a fourth and
final paragraph directing the court’s attention to the hearing on the motion to
withdraw, and claiming, without elaboration, that he “raised doubt [about] the
knowing and voluntary nature of the plea itself, and therefore, specific to [the
government’s] motion, to the waiver of his appellate rights.” Id. at 9.
“[P]erfunctory complaints fail to frame and develop an issue sufficient to
invoke appellate review,” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.
1994), so we could deem this argument waived. Regardless, it is Keller’s burden to
demonstrate involuntariness. See United States v. Tanner, 721 F.3d 1231, 1233
(10th Cir. 2013). And “[a] properly conducted plea colloquy, particularly one
containing express findings, will, in most cases, be conclusive on the waiver issue, in
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spite of a defendant’s post hoc assertions to the contrary.” Id. Here, the district court
conducted a painstakingly thorough plea colloquy. The district court confirmed,
among many other things, that Keller “had enough time” to discuss the case with his
attorney and was “fully satisfied with [his] counsel,” that he signed the plea
agreement “freely and voluntarily,” that no one “pressured [him] or coerced [him], in
any way, in order to get [him] to plead,” and that he understood the appellate waiver
(including the possible exceptions). R. vol. III at 9–10, 12, 13, 14–16. At
the conclusion of the colloquy, the district court found that Keller’s plea was
“a knowing and voluntary one.” Id. at 34. Arrayed against this, Keller points to the
motion-to-withdraw hearing in which he vaguely expressed the feeling of being
“rush[ed].” Suppl. R. at 6. We hold this is not enough to overcome the district
court’s findings at the change-of-plea hearing. We therefore find that Keller’s plea
(and the appeal waiver within it) were knowing and voluntary.
As to the third Hahn factor (miscarriage of justice), Keller asserts that his trial
attorney was constitutionally ineffective. We held in Hahn that “ineffective
assistance of counsel in connection with the negotiation of the waiver” could result in
a miscarriage of justice. 359 F.3d at 1327 (internal quotation marks omitted). But
we also stated that our holding “[did] not disturb [the] longstanding rule” that,
“[g]enerally, we only consider [such] claims on collateral review.” Id. n.13.
Understanding this, Keller points us to rare cases in which we determined that an
adequate record existed to adjudicate an ineffective-assistance claim on direct appeal.
He then asserts that he tried to raise an ineffective-assistance claim during the
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hearing on his lawyer’s motion to withdraw, but the district court did not allow him
to elaborate. Therefore, he says he did not have an opportunity to try and develop the
sort of record that would allow this court to adjudicate an ineffective-assistance claim
on direct appeal, so the court should remand to allow him to develop that record.
Keller’s proposal is unprecedented and unnecessary. There is no right to
develop an ineffective-assistance record before direct appeal, nor is there any need.
A 28 U.S.C. § 2255 proceeding is more than adequate to develop any claims a
defendant may wish to bring against his or her attorney. We therefore reject this
argument and find that enforcing the appeal waiver would not create a miscarriage of
justice.
III. CONCLUSION
For all these reasons, we reject Keller’s arguments, grant the government’s
motion to enforce the appeal waiver, and dismiss this appeal.
Entered for the Court
Per Curiam
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