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  • United States v. Tanner, 10th Cir. (2014)

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    1) Tyrone Henry Tanner pleaded guilty to one count of conspiring to possess and distribute controlled substances and one count of money laundering. He was sentenced to 135 months in prison on each count, to run concurrently. 2) In his plea agreement, Tanner waived his right to appeal his guilty plea, sentence, and any other aspect of his conviction. He attempted to appeal despite this waiver. 3) The appellate court determined there were no grounds to oppose enforcing Tanner's appeal waiver. His objections to his sentence involved guideline computations that fell within the scope of the waiver. Upholding the waiver would not result in a miscarriage of justice. Therefore, the court granted the government's motion

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    Filed: 2014-02-27 Precedential Status: Non-Precedential Docket: 13-6183

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    1) Tyrone Henry Tanner pleaded guilty to one count of conspiring to possess and distribute controlled substances and one count of money laundering. He was sentenced to 135 months in prison on each count, to run concurrently. 2) In his plea agreement, Tanner waived his right to appeal his guilty plea, sentence, and any other aspect of his conviction. He attempted to appeal despite this waiver. 3) The appellate court determined there were no grounds to oppose enforcing Tanner's appeal waiver. His objections to his sentence involved guideline computations that fell within the scope of the waiver. Upholding the waiver would not result in a miscarriage of justice. Therefore, the court granted the government's motion

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    36 views4 pages

    United States v. Tanner, 10th Cir. (2014)

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    1) Tyrone Henry Tanner pleaded guilty to one count of conspiring to possess and distribute controlled substances and one count of money laundering. He was sentenced to 135 months in prison on each count, to run concurrently. 2) In his plea agreement, Tanner waived his right to appeal his guilty plea, sentence, and any other aspect of his conviction. He attempted to appeal despite this waiver. 3) The appellate court determined there were no grounds to oppose enforcing Tanner's appeal waiver. His objections to his sentence involved guideline computations that fell within the scope of the waiver. Upholding the waiver would not result in a miscarriage of justice. Therefore, the court granted the government's motion

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES COURT OF APPEALS

    FOR THE TENTH CIRCUIT

    February 27, 2014


    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    TYRONE HENRY TANNER,

    No. 13-6183
    (D.C. No. 5:12-CR-00065-D-4)
    (W.D. Okla.)

    Defendant-Appellant.
    ORDER AND JUDGMENT*

    Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges.


    After entering into a plea agreement that included a waiver of his right to
    appeal, defendant Tyrone Henry Tanner pleaded guilty to one count of conspiring to
    possess with intent to distribute, and to distribute, several controlled substances and
    one count of money laundering. By stipulation the agreement attributed 2,999
    kilograms of marijuana-equivalent to Mr. Tanner in connection with the first count

    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.

    and $6,800 in laundered drug proceeds in connection with the second. The district
    court sentenced Mr. Tanner to 135 months imprisonment on each count, to run
    concurrently, a term within the applicable guideline range of 135 to 168 months
    determined by the court. Mr. Tanner then filed this appeal, despite the broad waiver
    of appeal rights included in his plea agreement. The government has filed a motion
    to enforce that waiver. We grant the motion and dismiss the appeal.
    The governments motion explains in facially sufficient fashion that this
    appeal falls within Mr. Tanners appeal waiver, that the waiver was knowing and
    voluntary, and that there are no circumstances to suggest a miscarriage of justice to
    excuse the waiver. See generally United States v. Hahn, 359 F.3d 1315, 1325
    (10th Cir. 2004) (en banc) (per curiam) (summarizing three components of courts
    inquiry when enforcing appeal waiver). In response, after noting two sentencing
    objections urged by his client, counsel for Mr. Tanner conceded there were no
    grounds upon which to oppose application of the appeal waiver and moved to
    withdraw under Anders v. California, 386 U.S. 738 (1967). We gave Mr. Tanner an
    opportunity to reply to counsels filing, but (despite a lengthy extension) the deadline
    for that response has passed without anything forthcoming from Mr. Tanner.
    When appellate counsel moves to withdraw under Anders, we must examine
    the proceedings and determine whether the appeal is wholly frivolous. Id. at 744.
    In the present context, that means we must assess whether there is a non-frivolous

    -2-

    argument to be made in opposition to the governments motion to enforce the appeal


    waiver. We agree with counsel that there is not.
    The plea agreement states that defendant knowingly and voluntarily waives
    his right to . . . [a]ppeal . . . his guilty plea, sentence and restitution imposed, and any
    other aspect of his conviction. Dist. Ct. doc. 164 at 9. Specifically as to sentence,
    the agreement states that he waives his right to appeal his sentence as imposed by
    the Court and the manner in which the sentence is determined, provided the sentence
    is within or below the advisory guideline range determined by the Court to apply to
    this case. Id. at 10. The two sentencing objections identified by counsel, involving
    the denial of safety-valve adjustment under U.S.S.G. 5C1.2(a) and the imposition
    of a firearm enhancement under U.S.S.G. 2D1.1(b)(1), fall squarely within the
    waiver. And since these only involve sentence-guideline computations, even if
    erroneous they would not qualify as miscarriages of justice to excuse the waiver.
    See United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (To allow alleged
    errors in computing a defendants sentence to render [an appeal] waiver unlawful
    would nullify the waiver based on the very sort of claim it was intended to waive.);
    see also United States v. Polly, 630 F.3d 991, 1001-02 (10th Cir. 2011) (following
    Smith).
    Finally, nothing in the record undercuts the representations of a knowing and
    voluntary waiver in the agreement. On the contrary, the plea colloquy confirmed
    those representations.
    -3-

    Because it appears it would be wholly frivolous for Mr. Tanner to oppose the
    governments motion to enforce his appeal waiver, we grant that motion as well as
    counsels motion to withdraw. The appeal is dismissed.

    Entered for the Court


    Per Curiam

    -4-

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