United States v. Albers , 599 F. App'x 352 ( 2015 )


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  •                                                              FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                       April 14, 2015
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                        No. 14-6220
    (D.C. No. 5:14-CR-0082-C-1)
    DERRICK JAY ALBERS,                                      (W.D. Okla.)
    Defendant - Appellant.
    ORDER AND JUDGMENT*
    Before BRISCOE, Chief Judge, KELLY and GORSUCH, Circuit Judges.
    Pursuant to a plea agreement with a broad appeal waiver, Derrick Jay Albers
    pleaded guilty on May 7, 2014, to one count of conspiracy to commit wire fraud, in
    violation of 
    18 U.S.C. §§ 1343
     and 1349, and was sentenced on October 23, 2014, to
    120 months’ imprisonment. Despite his appeal waiver, Mr. Albers filed a pro se
    notice of appeal. The government has moved to enforce the appeal waiver under
    United States v. Hahn, 
    359 F.3d 1315
     (10th Cir. 2004) (en banc) (per curiam). On
    *
    This panel has determined that oral argument would not materially assist 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    is not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    November 20, 2014, we appointed new counsel to represent Mr. Albers in this
    matter. In light of the response prepared by counsel, we grant the government’s
    motion to enforce and dismiss this appeal.
    Under Hahn, we ordinarily consider three factors: “(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
    . But
    Mr. Albers “do[es] not contest the government’s motion to enforce the plea
    agreement to the extent it seeks to bar a direct appeal.” Aplt. Resp. at 6. As a result,
    we need not address the Hahn factors in this instance. See United States v. Porter,
    
    405 F.3d 1136
    , 1143 (10th Cir. 2005) (stating that court need not address Hahn factor
    not in dispute).
    Mr. Albers argues, however, that the appeal waiver should not be read to
    foreclose a future collateral attack raising a claim of ineffective assistance of trial
    counsel as to the plea agreement or his sentence. See Aplt. Resp. at 6. He “agree[s]
    with the government that the evidence in the record is insufficient to raise [this] issue
    in a direct appeal,” id. at 2, but he wishes “to preserve his ability to collaterally
    attack the plea agreement or sentence,” id. at 6. Because the government’s motion is
    directed solely to the appeal now before us, we need not and do not decide whether
    the appeal waiver bars Mr. Albers from filing a future collateral attack raising a claim
    of ineffective assistance of counsel. Cf. United States v. Cockerham, 
    237 F.3d 1179
    ,
    -2-
    1181 (10th Cir. 2001) (addressing a motion to enforce an appeal waiver against a
    motion under 
    28 U.S.C. § 2255
    ).
    Accordingly, we grant the government’s motion to enforce the appeal waiver
    as to this appeal, and the appeal is dismissed.
    Entered for the Court
    Per Curiam
    -3-
    

Document Info

Docket Number: 14-6220

Citation Numbers: 599 F. App'x 352

Filed Date: 4/14/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023