United States v. Hays ( 2023 )

Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 30, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 22-1064
v. (D.C. No. 1:21-CR-00024-RBJ-2)
(D. Colo.)
KITIRA CHRISTINE HAYS, a/k/a Kitira
Hays,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MURPHY, and CARSON, Circuit Judges.
_________________________________
After examining the Anders brief filed by Defendant-Appellant Kitira Hays’s
counsel and the entire 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.
Hays pleaded guilty to aiding and abetting Hobbs Act robbery, in violation of
18 U.S.C. §§ 2, 1951, and using or carrying a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A). Hays waived her
*
This order and judgment is not binding precedent, except under the doctrines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: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 2
right to appeal except for the following issue: does her conviction for aiding and
abetting Hobbs Act robbery amount to a “crime of violence” for purposes of
§ 924(c).1 After answering that question in the affirmative and, therefore, denying
her motion to dismiss the § 924(c) charge, the district court sentenced Hays to a total
term of imprisonment of 177 months, consisting of 57 months as to the Hobbs Act
conviction and 120 months as to the § 924(c) conviction. After filing a timely notice
of appeal, Hays’s counsel filed in this court a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting he could find no meritorious basis for appeal and
moving to withdraw as counsel. For those reasons set out below, this court grants
counsel’s motion to withdraw and dismisses this appeal.
This appeal is before the court on Hays’s counsel’s Anders brief. Pursuant to
Anders, counsel may “request permission to withdraw where counsel conscientiously
examines a case and determines that any appeal would be wholly frivolous.” United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to
submit an appellate brief “indicating any potential appealable issues.” Id. Once
notified of counsel’s brief, the defendant may then submit additional arguments to
this court. Id. We “must then conduct a full examination of the record to determine
whether defendant’s claims are wholly frivolous.” Id. Despite being notified of her
entitlement to do so on at least two occasions, Hays did not file a brief in response to
1
As aptly noted by Hays’s appellate counsel, there exist no facts in the record
supporting a non-frivolous argument that the partial waiver of appellate rights is
unenforceable under the standard set out by this court in United States v. Hahn, 359
F.3d 1315 (10th Cir. 2004) (en banc).
2
Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 3
counsel’s Anders brief. The government also declined to file a brief. Thus, our
resolution of the case is based on counsel’s Anders brief and this court’s independent
review of the record. That independent review demonstrates the issue set out in
counsel’s Anders brief is wholly frivolous.
This court has squarely held that Hobbs Act robbery is a crime of violence
under § 924(c). United States v. Melgar-Cabrera, 892 F.3d 1053, 1060-66 (10th Cir.
2018). “[T]he fact that the defendant in Melgar-Cabrera did not provide the same or
similar argument as [the] argument here is of no moment; we are bound to follow
Melgar-Cabrera absent a contrary decision by the Supreme Court or en banc
reconsideration of Melgar-Cabrera.” United States v. Baker, 49 F.4th 1348, 1358
(10th Cir. 2022). Furthermore, as recognized in counsel’s Anders brief, the Supreme
Court’s post-Melgar-Cabrera decision in United States v. Taylor, 142 S. Ct. 2015,
2020 (2022), does not in any way call into question this court’s holding in Melgar-
Cabrera. Baker, 49 F.3d at 1360. Finally, the fact Hays pleaded guilty to aiding and
abetting Hobbs Act robbery does not create a reasonable question as to whether her
conviction qualifies as a “crime of violence” for purposes of § 924(c). See United
States v. Deiter, 890 F.3d 1203, 1214-16 (10th Cir. 2018) (holding that aiding and
abetting federal bank robbery is a “violent felony” under the elements clause of the
Armed Career Criminals Act). As Deiter makes clear, “aiding and abetting is not a
separate crime but simply eliminates the legal distinction between aiders and abettors
and principals. Therefore, it makes sense to look to the underlying statute of
conviction, rather than § 2, to decide whether the elements clause is satisfied.” Id. at
3
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1216; see also United States v. Styles, No. 19-3217, 2022 WL 34126, at *2-3 (3d Cir.
Jan. 4, 2022) (collecting cases, including this court’s decision in Deiter for the
proposition that aiding and abetting a crime of violence is itself a crime of violence
under the elements clause of § 924(c)(3)(A)).
Pursuant to the Anders mandate, this court has undertaken an independent
review of the entire record in this case. Our review demonstrates that issue raised in
counsel’s Anders brief is undeniably frivolous. Likewise, this court’s review of the
entire record reveals no other potentially meritorious issues. This is particularly true
given that the record reveals Hays validly waived her appellate rights as to all issues
except for the issue set out in counsel’s Anders brief. Accordingly, we GRANT
counsel’s motion to withdraw and DISMISS this appeal.
Entered for the Court
Michael R. Murphy
Circuit Judge
4