United States v. Gross
676 F. App'x 771
10th Cir.2017Background
- William D. Gross pleaded guilty pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement to possession with intent to distribute ~14 grams of marijuana.
- The plea agreement recommended a sentence of time served plus supervised release and included a broad appellate-waiver provision (but preserved ineffective-assistance claims).
- The government moved to enforce the appeal waiver under United States v. Hahn.
- Appointed counsel filed an Anders brief and moved to withdraw, reporting no non-frivolous appeal issues; the court attempted to notify Gross but mailings were returned.
- Gross’s pro se notice of appeal asserted claims including ineffective assistance, duress/coercion, PSR objections, and that the time-served sentence amounted to involuntary servitude.
- The Tenth Circuit independently reviewed the record and found no non-frivolous basis to challenge the waiver on direct appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gross’s appeal falls within the scope of the appellate waiver | Gross argued (via pro se filings) various claims including duress, ineffective assistance, and PSR errors | Government: waiver is broad and covers matters connected to prosecution, conviction, and sentence; it expressly preserves only certain collateral claims | Held: Waiver is broad and covers the appealed matters, including PSR and time-served sentence objections |
| Whether the appellate waiver was knowing and voluntary | Gross alleged duress/coercion and medication use affecting competence | Government relied on plea agreement acknowledgments and the Rule 11 colloquy where Gross denied coercion and confirmed he knowingly waived appeals | Held: On the record, waiver was knowing and voluntary; no non-frivolous argument to the contrary |
| Whether enforcing the waiver would cause a miscarriage of justice | Gross implicitly invoked ineffective assistance and other grievances | Government: miscarriage-of-justice exceptions are narrow; ineffective-assistance claims should be raised in § 2255 collateral proceedings | Held: No miscarriage of justice shown on direct appeal; ineffective-assistance claims are for § 2255 |
| Whether counsel may withdraw under Anders | Counsel contended no non-frivolous appeal exists | Gross did not meaningfully respond after mailings were returned | Held: Anders procedures satisfied; court granted counsel’s motion to withdraw and dismissed the appeal |
Key Cases Cited
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (framework for enforcing appellate waivers)
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedures when counsel finds appeal frivolous)
- United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) (ineffective-assistance claims generally raised under § 2255)
- United States v. Porter, 405 F.3d 1136 (10th Cir. 2005) (ineffective-assistance-based challenges to waivers belong in collateral proceedings)