Appellate Case: 23-3007 Document: 010110996222 Date Filed: 02/07/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 7, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3007
(D.C. No. 6:22-CR-10071-JWB-1)
ARMANI R. MASON, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
_________________________________
Armani Mason pleaded guilty to brandishing a firearm during a robbery in
violation of 18 U.S.C. § 924(c)(1)(A)(i) and now appeals his conviction and resulting
ten-year prison sentence. Defense counsel filed an Anders brief and moved to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after
“conscientious examination” of record, counsel finds appeal “wholly frivolous,” then
counsel may move to withdraw and contemporaneously file a “brief referring to
*
After examining the Anders brief 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. But it may be cited for its persuasive value. See Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
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anything in the record that might arguably support the appeal”). Mason did not file a
pro se response, and the government declined to file a brief. After reviewing the
Anders brief and conducting our own thorough examination of the record, we agree
that Mason’s appeal is wholly frivolous. See id. (noting court’s obligation to fully
examine record and determine frivolousness). We therefore dismiss the appeal and
grant counsel’s motion to withdraw.
We begin with Mason’s conviction. As an initial matter, nothing in the record
suggests that the district court lacked subject-matter jurisdiction, so any challenge on
that basis would be frivolous. See United States v. De Vaughn, 694 F.3d 1141, 1145–
46 (10th Cir. 2012). And typically, a voluntary and unconditional guilty plea waives
nearly all nonjurisdictional challenges. 1 See id. So we next consider the voluntariness
of Mason’s plea and whether there is any other ground on which Mason could seek to
withdraw his plea. 2 Because Mason did not challenge the validity of his plea or seek
1
An unconditional guilty plea does not waive constitutional due-process
claims for vindictive prosecution or double-jeopardy claims that are evident from the
face of the indictment, but nothing in the record suggests Mason has such claims
here. See De Vaughn, 694 F.3d at 1145–46.
2
Mason’s plea agreement contains an appeal waiver that could preclude him
from challenging his conviction and sentence. Relying on United States v. Banuelos-
Barraza, 639 F.3d 1262 (10th Cir. 2011) (unpublished table decision), defense
counsel certified in a letter of supplemental authority that the government would
invoke the appeal waiver. But the decision counsel cites doesn’t mention an appeal
waiver, much less discuss certification—indeed, defense counsel’s pincite is to a
footnote that does not appear in that decision. Rather, defense counsel appears to rely
on a prior version of that decision that was later amended nunc pro tunc. See United
States v. Banuelos-Barraza, No. 10-4125, slip op. at 3 n.2 (10th Cir. Mar. 31, 2011).
Moreover, contrary to defense counsel’s suggestion that defense counsel can invoke
an appeal waiver on the government’s behalf, we have held that only the government
may invoke an appeal waiver, whether in a letter response to an Anders brief, by
2
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to withdraw it below, any such claims would be subject to plain-error review. United
States v. Carillo, 860 F.3d 1293, 1300 (10th Cir. 2017); United States v. Vidal, 561
F.3d 1113, 1118–19 (10th Cir. 2009). Under that standard, a defendant must show a
plain error that affected substantial rights and “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Carillo, 860 F.3d at 1300.
A guilty plea must be knowing and voluntary. See United States v.
Muhammad, 747 F.3d 1234, 1239 (10th Cir. 2014). And the district court must ensure
as much before accepting a guilty plea; it must also advise and question the defendant
and determine that there is a factual basis for the plea. Fed. R. Crim. P. 11(b). Here,
the record reflects that the district court ensured that Mason was voluntarily entering
the plea: Mason affirmed that he was pleading knowingly and voluntarily, without
threat, and confirmed that he did not suffer from any impairments due to alcohol or
mental health issues. See Brady v. United States, 397 U.S. 742, 755 (1970)
(explaining that plea is voluntary when defendant is aware of consequences and was
neither threatened with nor promised anything). Moreover, nothing in the record
motion, or in its brief. See United States v. Contreras-Ramos, 457 F.3d 1144, 1145
(10th Cir. 2006); United States v. Calderon, 428 F.3d 928, 931 (10th Cir. 2005)
(holding that defense counsel “has no authority to waive or invoke arguments on
behalf of the government,” so “[t]he government cannot rely on defense counsel’s
raising the argument in an Anders brief as a substitute for fulfilling its own obligation
to seek enforcement of the plea agreement”). Here, the government filed a notice that
it did not intend to file a response brief; that notice did not mention the appeal
waiver. Nor did the government file a motion to enforce the appeal waiver or file a
brief invoking the waiver. In the absence of an express invocation by the government
and lacking any legal support for defense counsel’s certification that the government
would do so, we proceed without application of the appeal waiver.
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indicates that Mason’s plea was otherwise involuntary. The district court also fully
and adequately advised Mason of his rights. See Fed. R. Crim. P. 11(b)(1)(A)–(N).
Additionally, the district court confirmed the factual basis for the plea by comparing
the elements of the offense to the facts that the government said it would prove at
trial and that Mason admitted were true. See Carillo, 860 F.3d at 1305 (explaining
how district court should assess factual basis for plea). We therefore agree with
defense counsel that any challenge to the validity of Mason’s plea—and therefore his
conviction—would be frivolous.
We turn next to Mason’s sentence. We generally “review sentences for
reasonableness under a deferential abuse-of-discretion standard.” United States v.
Nkome, 987 F.3d 1262, 1268 (10th Cir. 2021) (quoting United States v. Alapizco-
Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008)). But “when a defendant fails to
preserve an objection,” review is “only for plain error.” United States v. Finnesy, 953
F.3d 675, 688 (10th Cir. 2020) (quoting United States v. Martinez-Barragan, 545
F.3d 894, 899 (10th Cir. 2008)).
The reasonableness of a sentence “includes both procedural and substantive
components.” Nkome, 987 F.3d at 1268 (quoting United States v. Masek, 588 F.3d
1283, 1290 (10th Cir. 2009)). We begin with procedural reasonableness, to “ensure
that the district court committed no significant procedural error.” Gall v. United
States, 552 U.S. 38, 51 (2007). A district court commits a procedural error when
miscalculating a defendant’s sentencing range under the United States Sentencing
Guidelines (U.S.S.G. or the Guidelines), treating the Guidelines as mandatory, failing
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to consider the sentencing factors in 18 U.S.C. § 3553(a), “selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall, 552
U.S. at 51.
We initially consider potential procedural errors that Mason did not raise
below and would therefore be subject to plain-error review. 3 First, the district court
properly calculated the Guidelines range as a seven-year mandatory minimum under
U.S.S.G. § 2K2.4. And because the district court ultimately imposed a ten-year
sentence, outside that range, we can infer that the court did not treat the Guidelines as
mandatory. In so doing, the district court considered the appropriate § 3553(a) factors
in determining Mason’s sentence. In particular, it noted that the nature of the offense
included stealing a car and robbing two McDonald’s restaurants. See § 3553(a)(1). It
further explained that during the first robbery, Mason placed his gun on the counter
and specifically and repeatedly threatened to kill the minor cashier, and during the
second, he cocked his gun before placing it on the counter and demanding money
from the minor cashier. The district court also discussed Mason’s criminal history,
which included juvenile theft offenses and robbery of an individual. See § 3553(a)(1),
3
During sentencing, Mason’s counsel stated that “[f]or purposes of preserving
our right of appeal, [we] object procedurally and substantially to the [c]ourt’s
tentative sentence.” R. vol. 3, 59. But a procedural-reasonableness argument can only
be preserved through “a sufficiently specific objection,” United States v. DeRusse,
859 F.3d 1232, 1237 (10th Cir. 2017), so this general statement did not preserve any
argument for appeal, see Finnesy, 953 F.3d at 681 (finding no preservation where
defense counsel merely stated “that procedurally . . . the sentence is . . .
unreasonable” (first omission in original) (quoting R. vol. 3, 56)).
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(2)(A)–(C). Nowhere in this discussion did the district court rely on clearly erroneous
facts; rather, it properly deferred to the unobjected-to presentence investigation
report (PSR). See Fed. R. Crim. P. 32(i)(3)(A). The district court also adequately
explained the sentence and its reason for imposing an upward variance. For example,
the district court explained that because the Guidelines range (the seven-year
statutory minimum) provided little actual guidance in fashioning a sentence, it
compared Mason’s conduct—which included specific threats to kill—to simple
brandishing. And because Mason’s conduct was more serious than simple
brandishing, the district court reasoned that it was appropriate to impose a sentence a
few years longer than the statutory minimum but much shorter than the statutory
maximum: life imprisonment. It also explained that various mitigating factors had
caused it to reduce its planned 12-year sentence down to ten. In sum, any plain-error
procedural challenge on these points would be frivolous.
We next turn to the only procedural claim that Mason preserved below when
he extrapolated on his general objection and argued more specifically that the district
court erred by relying in part on Mason’s knowledge of the victims’ juvenile status to
impose an upward variance. As the Anders brief highlights, the record demonstrates
that the district court chose to impose an upward variance not due to Mason’s
knowledge that the victims were minors, but rather for the simple reason that they
were minors. And this objective fact is within the district court’s discretion to
consider. United States v. Warren, 737 F.3d 1278, 1286 (10th Cir. 2013) (“If a PSR is
not disputed . . . , it is well established that a district court is free to rely on the PSR
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at sentencing.”). So any argument the district court abused its discretion in weighing
the victims’ minor status when determining Mason’s sentence would be frivolous.
Concluding that the district court did not procedurally err, we turn to the
substantive reasonableness of the sentence. See United States v. Lucero, 747 F.3d
1242, 1246 (10th Cir. 2014). Because Mason preserved a substantive reasonableness
challenge by requesting a shorter sentence, our review is for abuse of discretion. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020) (explaining
preservation of substantive-reasonableness argument); United States v. Gieswein, 887
F.3d 1054, 1064 (10th Cir. 2018) (providing abuse-of-discretion standard of review).
In determining substantive reasonableness, “we afford substantial deference to the
district court” and consider “whether the length of the sentence is reasonable given
all the circumstances of the case in light of the” sentencing factors in § 3553(a).
Gieswein, 887 F.3d at 1064. It is a holistic inquiry, and a district “court need not rely
on every single factor—no algorithm exists that instructs the district judge how to
combine the factors or what weight to put on each one.” United States v. Barnes, 890
F.3d 910, 916 (10th Cir. 2018).
Nothing in the record supports a finding of substantive unreasonableness here.
As we have already concluded, although the district court imposed a sentence above
the Guidelines range, it appropriately considered the § 3553(a) factors and provided
an adequate explanation for doing so. And it did not improperly weigh any one factor
in determining Mason’s sentence. As discussed, the district court spoke at length
about its reasons for imposing an upward variance and even reduced its initially
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contemplated sentence by two years. Thus any substantive-reasonable argument that
the district court abused its discretion in imposing Mason’s ten-year sentence would
be frivolous.
Because our examination of the record reveals no other nonfrivolous basis for
appeal, we dismiss the appeal and grant defense counsel’s motion to withdraw. See
Calderon, 428 F.3d at 930.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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