Appellate Case: 23-6193 Document: 010111031889 Date Filed: 04/15/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 15, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6193
(D.C. No. 5:23-CR-00018-F-1)
ROGER TERRY GURLEY, JR., (W.D. Okla.)
a/k/a Dark Side,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges.
_________________________________
Roger Terry Gurley, Jr., appeals from his sentence, but his plea agreement
contains an appeal waiver. The government now moves to enforce that waiver under
United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). Through
counsel, Gurley responds that the appeal waiver is unenforceable because of an
alleged misunderstanding, or allegedly substandard advice from his previous
attorney, about the scope of the sentencing hearing that would follow his guilty plea.
We reject these arguments and grant the government’s motion.
*
This order and judgment is not binding precedent, except under the doctrines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.
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I. BACKGROUND & PROCEDURAL HISTORY
In December 2002, Gurley’s ex-girlfriend and her new boyfriend went to a
motel in Oklahoma City to retrieve the ex-girlfriend’s belongings from a room she
had shared with Gurley. Gurley was still there. He and the new boyfriend were both
armed and they exchanged gunfire, but no one was hurt. Officers later located
Gurley in possession of a handgun with a scratched-off serial number.
The following month, a grand jury in the Western District of Oklahoma
indicted Gurley for being a felon in possession of a firearm. The grand jury also
indicted him for possession of a firearm with an obliterated serial number.
Gurley agreed to plead guilty to the first charge in exchange for dismissal of
the second charge. The parties executed a plea agreement embodying the terms of
their deal, including Gurley’s “knowing[] and voluntar[y] waive[r],” Suppl. R. at 31,
of his right to appeal on any ground except the substantive reasonableness of a
sentence above the range recommended by the sentencing guidelines, should the
district court impose such a sentence. The agreement also stated that the maximum
prison sentence for the charge to which he would plead guilty is fifteen years, and the
sentence ultimately imposed would be up to the district court.
At the ensuing change-of-plea hearing, the district court conducted a thorough
colloquy to ensure Gurley understood the terms of his agreement, specifically
including the appellate waiver, which the district court discussed from multiple
angles. For example, the district court asked Gurley if he understood that he was
waiving his “right to appeal the sentence that I impose in this case, as long as that
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sentence is within or below the advisory guideline range that I apply in this case.”
R. at 17. Gurley responded that he understood. The district court continued, “And in
this agreement, you’re waiving those rights, even though you do not yet know what
your sentence in this case will be; do you understand that?” R. at 17–18. Gurley
again responded that he understood. The district court then covered essentially the
same ground again, emphasizing that it had authority to impose a sentence up to the
statutory maximum, and confirming that Gurley understood he was giving up his
right to appeal the sentence other than a sentence above the guidelines range.
At another point during the plea colloquy, the district court specifically
focused on the indeterminacy of the sentence at the plea phase. The court told
Gurley that, when deciding on his sentence, it would consider “any other relevant or
similar conduct, whether or not that conduct is charged in this case,” and Gurley
confirmed his understanding. R. at 15. The court then stated,
For these reasons, Mr. Gurley, I want you to understand
that as a practical matter, as you stand before the Court
today, you have no way of knowing with any certainty
what the consequences of your plea will be, because I
don’t have the presentence report and I don’t have the
other information that I ultimately will have to consider in
determining the sentence in this case and I don’t know
what the consequences of your plea will be; do you
understand that?
Id. Gurley said that he understood.
After covering other aspects of the plea agreement, the district court found that
Gurley was knowingly and voluntarily pleading guilty. The court therefore accepted
the plea and set the matter for sentencing.
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At the sentencing hearing, the major dispute was why Gurley had exchanged
gunfire with his ex-girlfriend’s new boyfriend. The presentence report gave two
sides of the story. According to the ex-girlfriend, it appeared Gurley had been lying
in wait for her at their old room, intending to shoot her, and he fired the first bullet at
her. He then chased her and her boyfriend, firing more rounds in their direction. The
boyfriend managed to fire one round back at Gurley before he and the girlfriend took
cover in the main office, at which point Gurley fled. According to Gurley, however,
the new boyfriend shot at him, and he returned fire only in self-defense.
The difference between the two stories mattered. If the court found that
Gurley opened fire with intent to kill, as suggested by the girlfriend’s version of
events, it could justify a sentencing range calculated by cross-reference to the
guideline for attempted murder. Factoring in all other adjustments and Gurley’s
criminal history, the guidelines range based on attempted murder was 168 to 180
months. Without considering attempted murder, the range was 151 to 180 months.
The government played a motel surveillance video for the court. Based on the
video and other circumstances, the court found intent to kill. The court accordingly
calculated the guidelines range as 168 to 180 months, and it sentenced Gurley to the
top end of that range, corresponding to the statutory maximum.
This appeal timely followed.
II. ANALYSIS
When the government moves to enforce an appeal waiver, we ask three
questions: “(1) whether the disputed appeal falls within the scope of the waiver of
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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. Gurley concedes the first inquiry, i.e., that this
appeal falls within the scope of the waiver.
As to the second and third inquiries, Gurley presents essentially the same
argument. He claims he was not informed, ahead of the plea deal, that his guidelines
calculation would ultimately turn on his intent when he fired his gun. He accordingly
says he received ineffective assistance of counsel before the plea, making the
resulting plea involuntary (the second Hahn inquiry) and threatening a miscarriage of
justice if this court were to enforce the appeal waiver (the third Hahn inquiry).
“Generally, we only consider ineffective assistance of counsel claims on
collateral review.” Id. at 1327 n.13. There are “rare [ineffective assistance] claims
which are fully developed in the record [and] may be brought . . . on direct appeal,”
United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995), but this is not one of
them. Gurley’s phrasing of the argument shows he is trying to raise it without
developing the record. He says “there is reason to believe [his trial] counsel [who is
not the same as his appellate counsel] materially misinformed him of the
consequences of the plea and possible disposition,” Resp. at 7, and “[b]ased on his
attorney’s arguments at sentencing, one does not have to strain to imagine that the
advice [he] relied on when deciding to plead guilty was incomplete at best,” id. at 9.
This framing of the issue arises from the fact that Gurley’s trial counsel argued at
sentencing that Gurley’s discharge of his gun amounted to, at most, assault with a
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dangerous weapon, rather than intent to kill. Counsel did not argue self-defense,
as Gurley claims he wanted. Failure to argue self-defense, in Gurley’s view, shows
that counsel did not understand what was really at stake, both at sentencing and at the
pre-plea phase.
These inferences from sentencing arguments do not substitute for a record.
For example, we do not know what Gurley’s trial counsel knew or reasonably should
have known about likely sentencing factors at the time he advised Gurley about the
plea deal, and we do not know what advice he actually gave to Gurley at that time. If
he did not give the advice that Gurley claims he should have received, we do not
know enough of the circumstances to say whether that lack of advice amounted to
ineffective assistance. And we do not know if there is any evidence that Gurley
would have rejected the plea if he had known his sentence could turn in part on his
intent when he fired his gun. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[T]o
satisfy the ‘prejudice’ requirement [of an ineffective assistance claim], the defendant
must show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”).
Thus, whether Gurley frames this as a question of voluntariness or a
miscarriage of justice, it is not a reason to excuse him from his appeal waiver and
allow him to argue ineffective assistance in this proceeding. 1 Moreover, if Gurley
also means to argue that his plea was involuntary, or that enforcing the appeal waiver
1
The plea agreement does not forbid Gurley from raising ineffective
assistance of counsel through a 28 U.S.C. § 2255 motion.
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would be a miscarriage of justice, even if his trial counsel had given effective advice,
we disagree.
As described previously, the plea agreement affirms that it was entered into
knowingly and voluntarily, and the district court conducted a thorough plea
colloquy—which included a specific warning that Gurley’s uncharged conduct might
factor into his sentence. See Hahn, 359 F.3d at 1325 (“When determining whether a
waiver of appellate rights is knowing and voluntary, we especially look to . . .
whether the language of the plea agreement states that the defendant entered the
agreement knowingly and voluntarily[, and whether the district court conducted] an
adequate Federal Rule of Criminal Procedure 11 colloquy.”).
As for a miscarriage of justice, Gurley must show that (1) the district court
relied on an impermissible factor such as race, (2) there was ineffective assistance of
counsel specifically as to the negotiation of the appeal waiver, (3) the sentence
exceeds the statutory maximum, or (4) the waiver is otherwise unlawful. See Hahn,
359 F.3d at 1327. “[This] list is exclusive.” United States v. Shockey, 538 F.3d 1355,
1357 (10th Cir. 2008). Gurley does not claim his alleged misunderstanding about the
focus of the sentencing hearing fits under any of these possibilities. We therefore
find no potential miscarriage of justice.
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III. CONCLUSION
We grant the government’s motion and dismiss this appeal.
Entered for the Court
Per Curiam
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