United States v. Evans , 636 F. App'x 986 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 4, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-4100
(D.C. No. 2:01-CR-00603-DAK-1)
STEVEN OLIN EVANS, (D. Utah)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, HOLMES, and MORITZ, Circuit Judges.
_________________________________
In 2002, Steven Evans pled guilty to two counts of brandishing a firearm during a
crime of violence, a violation of 18 U.S.C. § 924(c). Twelve years later, he filed a pro se
motion to withdraw his plea, arguing the government breached the terms of the plea
agreement.
To the extent Evans sought to withdraw his plea, the district court concluded such
relief was unavailable under Rule 11(e) of the Federal Rules of Criminal Procedure,
which states a defendant can’t withdraw a guilty or no contest plea after sentencing. But
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
to the extent Evans asserted his judgment included restitution he never agreed to pay, the
district court alternatively construed Evans’ motion as a request to “amend the Judgment
to reflect the bargain reached in the Plea Agreement.” Order at 2. The district court
denied that request too.
Proceeding pro se1 on appeal,2 Evans presents us with seven “questions of law.”
Aplt. Br. 1-2. But he cites neither legal authority nor the portions of the record that might
help us answer those “questions.” See Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s
brief to include “citations to the authorities and parts of the record on which the appellant
relies”). Thus, we decline to address them. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (noting we routinely refuse to consider arguments that fail to meet Rule
28’s requirements); Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152,
1175 (10th Cir. 2002) (“We do not consider merely including an issue within a list to be
adequate briefing.”), modified on other grounds on reh’g, 319 F.3d 1207 (10th Cir.
2003).
1
Because Evans proceeds pro se, we liberally construe his filings and apply a
more forgiving standard than we apply to attorney-drafted filings. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we won’t act as his
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
Evans filed his notice of appeal more than fourteen days after the district court
denied his motion. Nevertheless, he stated in his notice that he didn’t receive a copy of
the district court’s order until after Fed. R. App. P. 4(b)(1)(A)(i)’s fourteen-day time
period expired. Because Rule 4(b) is a claim-processing rule, not a jurisdictional one,
relief under the rule “may be forfeited if not properly raised by the government.” United
States v. Garduno, 506 F.3d 1287, 1291 (10th Cir. 2007). The government hasn’t asked
us to dismiss Evans’ appeal as untimely. Accordingly, we exercise our discretion to hear
his appeal.
2
In any event, as the government points out, the district court lacked authority to
allow Evans to withdraw his plea. See Rule 11(e). And we discern no error in the district
court’s decision refusing to modify the Judgment to remove certain restitution. See 18
U.S.C. § 3664(o) (listing circumstances in which court may modify order of restitution).
Accordingly, we affirm the district court’s denial of Evans’ motion, and we deny his
request to proceed in forma pauperis (IFP). See DeBardeleben v. Quinlan, 937 F.2d 502,
505 (10th Cir. 1991) (explaining that to succeed on motion to proceed IFP, appellant
must show “existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal”).
Entered for the Court,
Nancy L. Moritz
Circuit Judge
3