United States v. Monaco ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 30, 2019
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1339
(D.C. No. 1:17-CR-00417-RBJ-1)
ANGELA NICOLE MONACO, a/k/a (D. Colo.)
Rubbo Angela Beckcom, a/k/a Angela
Rubbo, a/k/a Angela Beckcom,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, LUCERO, and MORITZ, Circuit Judges.
_________________________________
Angela Nicole Monaco pleaded guilty to one count of conspiring to commit
mail and wire fraud and one count of money laundering. She was sentenced to serve
74 months in prison, which was within the advisory guideline range of 70 to 87
months. Although her plea agreement contained a waiver of her appellate rights, she
filed a notice of appeal. Her docketing statement indicates she wants to challenge her
sentence on appeal. The government has moved to enforce the appeal waiver in
*
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.
This order and judgment is not binding precedent, except under the doctrines of law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.
Ms. Monaco’s plea agreement pursuant to 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 [her] appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325. In her response to the motion to
enforce, Ms. Monaco disputes that her appellate waiver was knowing and voluntary.
She suggests her trial counsel may have provided ineffective assistance by advising
her to reject an earlier, more-favorable plea offer.
Ms. Monaco’s plea agreement contains a waiver of her right to appeal any
matter in connection with her prosecution, conviction or sentence. It also contains a
waiver of her right to challenge her prosecution, conviction, or sentence in any
collateral attack, including a motion brought under 28 U.S.C. § 2255. But the plea
agreement expressly reserves the right for Ms. Monaco to raise a claim in a collateral
proceeding for ineffective assistance of counsel or prosecutorial misconduct.
Ms. Monaco acknowledges that “‘a defendant must generally raise claims of
ineffective assistance of counsel in a collateral proceeding, not on direct review’—
‘even where a defendant seeks to invalidate an appellate waiver based on ineffective
assistance of counsel.’” Resp. at 1-2 (quoting United States v. Porter, 405 F.3d
1136, 1144 (10th Cir. 2005)).
Given these circumstances, Ms. Monaco:
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does not object to a finding that she cannot show on the present record that
her plea or her appeal waiver was not knowing or voluntary (or that her
appeal is outside the scope of the waiver, or necessary to avoid a
miscarriage of justice under [Hahn]), and she does not object to a dismissal
of her direct appeal on the government’s motion without prejudice to her
filing a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel
or prosecutorial misconduct.
Resp. at 2.
We agree with the government that, on the present record, Ms. Monaco’s
waiver was knowing and voluntary, her appeal is within the scope of the appeal
waiver, and enforcing the waiver will not result in a miscarriage of justice.
Accordingly, we grant the government’s motion to enforce the appeal waiver and
dismiss the appeal. This dismissal is without prejudice to Ms. Monaco’s right to
bring a claim in a collateral proceeding for ineffective assistance of counsel or
prosecutorial misconduct as permitted in her plea agreement.
Entered for the Court
Per Curiam
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