United States v. Reed

Appellate Case: 22-1008 Document: 010110722758 Date Filed: 08/10/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 10, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1008
(D.C. No. 1:21-CR-00142-CMA-1)
FANICE ANDREA REED, (D. Colo.)
a/k/a Fanice Jones,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Fanice Andrea Reed pleaded guilty to theft or conversion of government
property in violation of 18 U.S.C. § 641. She was sentenced to serve 27 months in
prison. Although her plea agreement contained a waiver of her appellate rights, she
filed a notice of appeal. The government has moved to enforce the appeal waiver in
the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)
(en banc) (per curiam).
*
This order and judgment is not binding precedent, except under the doctrines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: 22-1008 Document: 010110722758 Date Filed: 08/10/2022 Page: 2
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. The government asserts that all of the
Hahn conditions have been satisfied.
Appellate counsel for Ms. Reed filed a response and motion to withdraw
pursuant to Anders v. California, 386 U.S. 738, 744 (1967), conceding “that any
appeal [including any opposition to the Motion to Enforce] would be wholly
frivolous.” Resp. at 1 (internal quotation marks omitted). Ms. Reed has also filed a
brief pro se response in which she expresses dissatisfaction with trial counsel’s
representation, but acknowledges that “to move forward” with an ineffective
assistance of counsel claim, “[she] would need to file a [28 U.S.C. §] 2255 [motion]”
in district court. Pro Se Resp. at 1. She does not offer any arguments in response to
the government’s motion to enforce or otherwise challenge her appellate counsel’s
determination that any opposition to the motion to enforce would be frivolous.
Based on counsel’s and Ms. Reed’s concessions and our independent review of
the record, we grant counsel’s motion to withdraw, grant the government’s motion to
enforce the appeal waiver, and dismiss the appeal. This dismissal does not affect
Ms. Reed’s right to pursue post-conviction relief on the grounds permitted in her plea
agreement.
Entered for the Court
Per Curiam
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