United States v. Albers

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is not binding precedent, except under the doctrines of law of the case, res judicata,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-