United States v. Mosley

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 18, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6174
(D.C. No. 5:16-CR-00195-R-1)
TERRANCE TRENT MOSLEY, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and MORITZ, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Terrance Trent Mosley’s plea agreement.
Mosley pleaded guilty to abusive sexual contact. Pursuant to the plea agreement, he
waived his right to appeal his conviction or sentence, provided his sentence was
within the statutory maximum and not above the advisory guideline range determined
by the district court to apply. Mosley’s sentence was below the statutory maximum
and within the advisory guidelines range. Nevertheless, he filed a notice of appeal.
*
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This order and judgment is not binding precedent, except under the doctrines of law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.
The government filed a motion to enforce the plea agreement pursuant to
United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
In response, Mosley’s counsel stated that there are no non-frivolous arguments that
can be presented in response to the motion to enforce, citing Anders v. California,
386 U.S. 738, 744 (1967), and requesting that the case be dismissed without
prejudice to allow Mosley to pursue a claim for ineffective assistance of counsel in a
later motion under 28 U.S.C. § 2255. This court gave Mosley an opportunity to file a
pro se response to the motion to enforce, see Anders, 386 U.S. at 744, but he has not
done so.
Under Anders, we have reviewed the motion and the record, and we conclude
that Mosley’s proposed appeal falls within the scope of the appeal waiver and that
nothing in the record indicates that he did not knowingly and voluntarily waive his
appellate rights or that enforcing the waiver would result in a miscarriage of justice.
See Hahn, 359 F.3d at 1325 (describing factors this court considers to determine
whether to enforce an appeal waiver).
Accordingly, we grant the motion to enforce the appeal waiver and dismiss the
appeal.
Entered for the Court
Per Curiam
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