United States v. Dudley ( 2022 )

Appellate Case: 22-1016 Document: 010110714823 Date Filed: 07/22/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 22, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1016
(D.C. No. 1:18-CR-00286-WJM-1)
MARVIN SAKORI MALEIK DUDLEY, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before McHUGH, MORITZ, and CARSON, Circuit Judges.
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Marvin Dudley pleaded guilty to possessing a firearm as a felon and to
possessing a firearm in furtherance of a drug-trafficking crime. See 18 U.S.C.
§§ 922(g)(1), 924(c)(1)(A)(i). As his plea agreement required, he waived the right to
appeal. He has appealed nevertheless, and the government moves to enforce the
appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam). Seeing no grounds to oppose the government’s motion,
Mr. Dudley’s attorney moves to withdraw. See Anders v. California, 386 U.S. 738,
*
This order and judgment is not binding precedent, except under the doctrines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: 22-1016 Document: 010110714823 Date Filed: 07/22/2022 Page: 2
744 (1967). At our invitation, Mr. Dudley himself has responded to the
government’s motion.1
We will enforce an appeal waiver if (1) the appeal falls within the waiver’s
scope, (2) the defendant waived the right to appeal knowingly and voluntarily, and
(3) enforcing the waiver would not “result in a miscarriage of justice.” Hahn,
359 F.3d at 1325.
Scope of the waiver. Mr. Dudley waived the right to appeal “any matter in
connection with this prosecution, conviction, or sentence” subject to three exceptions
that do not apply. R. vol. 1 at 149–50. This appeal fits within the scope of the
waiver.
Knowing and voluntary waiver. Mr. Dudley does not dispute the
government’s claim that he waived the right to appeal knowingly and voluntarily.
And our own examination of the proceedings reveals no grounds to dispute the
government’s position. See Anders, 386 U.S. at 744.
Miscarriage of justice. Enforcing an appeal waiver will result in a miscarriage
of justice if (1) the district court relied on an impermissible factor; (2) ineffective
assistance of counsel in negotiating the waiver makes it invalid; (3) the sentence
exceeds the statutory maximum; or (4) the waiver is otherwise unlawful, seriously
affecting the fairness, integrity, or public reputation of the proceedings. Hahn,
359 F.3d at 1327. Mr. Dudley has the burden to show that enforcing his appeal
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Mr. Dudley has filed a response and a supplement to the response.
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waiver will result in a miscarriage of justice. See United States v. Anderson,
374 F.3d 955, 959 (10th Cir. 2004).
Mr. Dudley argues that his waiver is otherwise unlawful because he is actually
innocent of the § 924(c) count. In the context of a prisoner’s first habeas
proceedings, a credible showing of actual innocence can overcome procedural default
and the limitations period. See Fontenot v. Crow, 4 F.4th 982, 1029 (10th Cir. 2021),
cert. denied, 142 S. Ct. 2777 (2022) (citing McQuiggin v. Perkins, 569 U.S. 383, 386
(2013)). But neither the Supreme Court nor this court has ever held that actual
innocence can overcome an appeal waiver. And even if it could, Mr. Dudley has not
made a credible showing of actual innocence.
The § 924(c) count alleged that Mr. Dudley possessed a firearm in furtherance
of a drug-trafficking crime—possession of a controlled substance under 21 U.S.C.
§ 844(a). Simple possession qualifies as a drug-trafficking crime if it is a felony.
See § 924(c)(2). And simple possession is a felony if the defendant has “a prior
conviction for any drug, narcotic, or chemical offense chargeable under the law of
any State.” § 844(a); see 18 U.S.C. § 3559(a).
In his plea agreement, Mr. Dudley stipulated that he had four prior Colorado
controlled-substance convictions and that any one of them made simple possession a
felony that could serve as the predicate for the § 924(c) count. Now, though, he says
one of his prior convictions does not qualify as a “drug, narcotic, or chemical
offense” under § 844(c). As a result, he concludes, simple possession was not a
felony for him, and he is innocent of the § 924(c) count.
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Mr. Dudley’s argument does not suggest his innocence. He stipulated that he
had four prior convictions, each of them sufficient to make simple possession a
felony. So it does not matter if one of them does not in fact qualify as a “drug,
narcotic, or chemical offense.” That would still leave him, by his own stipulation,
with three prior convictions that each made simple possession a felony.
Mr. Dudley also argues that the district court erred in denying his motion to
dismiss and that the district court showed animus toward him at sentencing. These
arguments allege error in Mr. Dudley’s conviction and sentence, not in the appeal
waiver itself. So to the extent Mr. Dudley contends those errors make his waiver
otherwise unlawful, he is mistaken: “An appeal waiver is not ‘unlawful’ merely
because the claimed error would, in the absence of waiver, be appealable.” United
States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007).
In sum, Mr. Dudley has not shown that enforcing his appeal waiver will result
in a miscarriage of justice.
* * *
We grant the government’s motion to enforce the appeal waiver. We grant
defense counsel’s motion to withdraw. We deny Mr. Dudley’s request to appoint
different counsel to represent him. We dismiss this appeal.
Entered for the Court
Per Curiam
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