United States v. Crister

Appellate Case: 21-6082 Document: 010110633835 Date Filed: 01/19/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 19, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6082
(D.C. No. 5:19-CR-00372-F-3)
ZACHARY GEORGE CRISTER, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MATHESON and CARSON, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Zachary George Crister’s plea agreement pursuant to United States
v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), and 10th Cir. R.
27.3(A)(1)(d). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion
and dismiss the appeal.
Mr. Crister pleaded guilty to distribution of 26 grams of actual
methamphetamine, use of a telephone in furtherance of a drug-trafficking crime, and
possession of 50 grams or more of a mixture or substance containing a detectable
*
This order and judgment is not binding precedent, except under the doctrines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: 21-6082 Document: 010110633835 Date Filed: 01/19/2022 Page: 2
amount of methamphetamine with intent to distribute. As part of the plea agreement,
Mr. Crister waived his right to appeal his conviction and sentence, provided the
sentence was not above the advisory Guidelines range as determined by the district
court. Both by signing the written plea agreement and in his responses to the court’s
questions at the change of plea hearing, Mr. Crister acknowledged that he was
entering his plea knowingly and voluntarily and that he understood its consequences,
including the possible sentences and the appeal waiver. The court accepted the plea
and sentenced Mr. Crister to 240 months’ imprisonment. Despite receiving a
sentence below the applicable Guidelines range, he filed a notice of appeal.
In response to the government’s motion to enforce the appeal waiver,
Mr. Crister’s counsel cited Anders v. California, 386 U.S. 738, 744 (1967), and stated
that Mr. Crister has no non-frivolous argument against enforcement of his appeal
waiver. We gave Mr. Crister an opportunity to file a pro se response to the motion to
enforce, but he has not done so.
In ruling on a motion to enforce, we consider whether the appeal falls within
the scope of the waiver, whether the waiver was knowing and voluntary, and whether
enforcing it would result in a miscarriage of justice. Hahn, 359 F.3d at 1325.
Having reviewed the proceedings in accordance with our obligation under
Anders, see 386 U.S. at 744, we conclude that the Hahn factors have been met and
that there is no non-frivolous argument to make against enforcing the appeal waiver.1
1
We note that Mr. Crister’s docketing statement indicates that he intended to
challenge his conviction based on alleged ineffective assistance of counsel. Such
2
Appellate Case: 21-6082 Document: 010110633835 Date Filed: 01/19/2022 Page: 3
Accordingly, we grant the government’s motion to enforce Mr. Crister’s
appeal waiver and dismiss this appeal.
Entered for the Court
Per Curiam
claims generally should be raised in collateral proceedings under 28 U.S.C. § 2255,
not on direct review. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995) (en banc). We note that Mr. Crister’s plea agreement bars him from
collaterally challenging his conviction or sentence “except with respect to claims of
ineffective assistance of counsel.” Mot. to Enforce Attachs. at 9.
3