UNITED STATES v. BURGER (2021)

United States Court of Appeals, Tenth Circuit.2021-05-03No. No. 20-6197

Summary · law.co

Holding. The court granted the government's motion to enforce the appeal waiver and dismissed the appeal.

James Burger pleaded guilty to methamphetamine possession with intent to distribute and received a 192-month prison sentence. His plea agreement included a waiver of appellate rights, but he filed a notice of appeal anyway. The government moved to enforce the waiver, and his attorney filed an Anders brief expressing the view that any challenge to the waiver would be frivolous and requesting to withdraw from representation.

The court applied the three-part test for enforcing appeal waivers, examining whether the appeal falls within the waiver's scope, whether Burger knowingly and voluntarily waived his rights, and whether enforcing the waiver would cause a miscarriage of justice. After independent review of the record, the court determined all three conditions were satisfied and that the waiver should be enforced.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Enforceability of appellate rights waivers in guilty plea agreements
Knowledge and voluntariness of waiver
Miscarriage of justice exception to waiver enforcement

Procedural posture

Burger appealed his conviction despite a valid appeal waiver contained in his plea agreement, prompting the government to seek enforcement of that waiver.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

ORDER AND JUDGMENT *

James Burger pled guilty to one count of possession of methamphetamine with intent to distribute. He was sentenced to 192 months in prison, which was below the advisory sentencing guidelines range. Although his plea agreement contained a waiver of his appellate rights, he filed a notice of appeal. The government then filed a motion to enforce the appeal waiver. Counsel filed a response to the motion pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating his belief that any argument against enforcement of the plea agreement is frivolous and that the appeal waiver is enforceable. Counsel also filed a motion to withdraw as counsel of record for Mr. Burger. We gave Mr. Burger the opportunity to file a pro se response to show why the appeal waiver should not be enforced. His response was due on April 13, 2021, but to date he has not filed a response.

We will enforce an appeal waiver if (1) “the disputed appeal falls within” the waivers scope; (2) “the defendant knowingly and voluntarily waived his appellate rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). The government argues that all three of these conditions are met in this case.

Consistent with our obligation under Anders, we conducted an independent review of the proceedings. See 386 U.S. at 744, 87 S.Ct. 1396. After doing so, we agree with the government that Mr. Burgers appeal waiver should be enforced under Hahn. We therefore grant the governments motion and dismiss the appeal. We also grant counsels motion to withdraw.

Per Curiam