United States v. Phillips ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3196
(D.C. No. 6:16-CR-10093-EFM-1)
CHRISTOPHER JAMES PHILLIPS, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Christopher James Phillips’s plea agreement. We grant the
government’s motion and dismiss the appeal.
Phillips pled guilty to failure to register under the Sex Offender Registration
and Notification Act, in violation of 18 U.S.C. § 2250(a). On May 1, 2017, the
district court sentenced him to time served plus five years’ supervised release. On
September 29, 2020, the district court revoked Phillips’s supervised release for
*
This order and judgment is not binding precedent, except under the doctrines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.
violating the terms thereof and sentenced him to 15 months’ imprisonment with no
remaining supervision.
Although his plea agreement contained a broad waiver of his appellate rights,
including his right to appeal “any sentence imposed upon a revocation of supervised
release,” Mot. for Enforcement of Appeal Waiver Attach. C at 5, he seeks to
challenge the procedural and substantive reasonableness of his sentence through this
appeal. The government has moved to enforce the appeal waiver in the plea
agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)
(per curiam).
Under Hahn, we consider “(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.” Id. at 1325. The government asserts that all of the
Hahn conditions have been satisfied: (1) Phillips’s appeal is within the scope of the
appeal waiver because he waived the right to challenge “the components of the
sentence . . . as well as any sentence imposed upon a revocation of supervised
release,” Mot. for Enforcement of Appeal Waiver Attach. C at 5; (2) he knowingly
and voluntarily waived his appellate rights; and (3) enforcing the waiver would not
result in a miscarriage of justice.
We entered an order directing Phillips to respond to the government’s Hahn
motion. But instead of responding to the Hahn motion, Phillips’s attorney filed a
motion to withdraw as counsel and a supporting brief under Anders v. California,
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386 U.S. 738 (1967). Counsel stated that she had “carefully examined the record on
appeal[,] . . . researched the relevant law,” and “concluded that this appeal does not
present any factually or legally nonfrivolous issues.” Mot. to Withdraw as Counsel
at 1. Neither the motion to withdraw nor the supporting Anders brief addressed the
government’s Hahn motion or the Hahn factors.
We then entered another order directing Phillips to respond to the
government’s Hahn motion. In response, Phillips’s attorney stated that she had
“already filed an Anders brief, indicating that there are no nonfrivolous issues to
raise. The appeal-waiver inquiry accordingly fails at step one.” Resp. to Mot. for
Enforcement of Appellate Waiver at 2. But this response did not meaningfully
address the first Hahn factor, which requires the court to consider whether the appeal
falls within the scope of the appeal waiver without regard to whether the arguments
that might be raised have merit. 1 And counsel’s response did not address the second
or third Hahn factors as it should have.
We therefore invited Phillips to file a pro se response. Phillips dedicated most
of his response to arguing that his attorney’s motion to withdraw should be denied.
Regarding the Hahn motion, he stated only that it “would be a gross miscarriage of
justice” if his appeal is “not brought before the court.” Pro se Resp. at 1.
1
If counsel did not believe that she could advance a non-frivolous argument
that this appeal falls outside the scope of the appeal waiver, she should have alerted
this court and her client to that fact in accordance with Anders. 10th Cir. R.
46.4(B)(1) (“[C]ounsel . . . who believes opposition to a motion to dismiss would be
frivolous must file an Anders brief.”).
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“The burden rests with the defendant to demonstrate that the appeal waiver
results in a miscarriage of justice.” United States v. Anderson, 374 F.3d 955, 959
(10th Cir. 2004). Enforcement of an appellate waiver results in a miscarriage of
justice when (1) “the district court relied on an impermissible factor such as race,”
(2) “ineffective assistance of counsel in connection with the negotiation of the waiver
renders the waiver invalid,” (3) “the sentence exceeds the statutory maximum,” or
(4) “the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327 (internal quotation
marks omitted). To satisfy this last factor under Hahn, the alleged “error must
seriously affect the fairness, integrity or public reputation of judicial proceedings.”
Id. (brackets and internal quotation marks omitted). Phillips has not alleged that any
of these factors are present here.
Based on our independent review of the record, we conclude that the Hahn
conditions are satisfied in this case. We therefore grant the government’s motion and
dismiss the appeal.
We grant counsel’s motion to withdraw.
Entered for the Court
Per Curiam
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