United States v. Allen

Appellate Case: 21-2067 Document: 010110634660 Date Filed: 01/20/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 20, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2067
(D.C. No. 1:19-CR-01204-JB-1)
IVAN ALLEN, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver in Ivan Allen’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)(c).
Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the
appeal.
Mr. Allen pleaded guilty to two counts of assaulting a federal officer involving
physical contact. As part of the plea agreement, he waived his right to appeal his
conviction and any sentence within the statutory maximum. Both by signing the
*
This order and judgment is not binding precedent, except under the doctrines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: 21-2067 Document: 010110634660 Date Filed: 01/20/2022 Page: 2
written plea agreement and in his responses to the court’s questions at the change of
plea hearing, Mr. Allen 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. Allen to 21
months’ imprisonment. Despite receiving a sentence well below the statutory eight-
year maximum, see 18 U.S.C. § 111(a), he filed a notice of appeal. His docketing
statement indicates that he intended to challenge the validity of his guilty plea, the
validity and enforceability of the appeal waiver, and the reasonableness of his
sentence.
In response to the government’s motion to enforce the appeal waiver,
Mr. Allen’s counsel cited Anders v. California, 386 U.S. 738, 744 (1967), and stated
that Mr. Allen has no non-frivolous argument against enforcement of his appeal
waiver. Counsel also requested permission to withdraw from representing Mr. Allen.
See id. We gave Mr. Allen 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.
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Appellate Case: 21-2067 Document: 010110634660 Date Filed: 01/20/2022 Page: 3
Accordingly, we grant the government’s motion to enforce Mr. Allen’s appeal
waiver and dismiss this appeal. We also grant defense counsel’s motion to withdraw.
Entered for the Court
Per Curiam
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