United States v. Whitaker, 20-7050

Whitaker pled guilty (21 U.S.C. §§ 841(a)(1), (b)(1)(B)) under a written plea agreement that included an express waiver of the right to directly appeal conviction and sentence, except for sentences exceeding the statutory maximum.
The district court accepted the plea after an adequate Rule 11 colloquy and found a factual basis; Whitaker signed and initialed the plea agreement acknowledging the waivers.
The court sentenced Whitaker to a within-Guidelines term of 125 months, 4 years supervised release, and a $100 special assessment.
Whitaker filed a timely notice of appeal and challenged his sentence, arguing the government waived enforcement of the waiver and that the court erred in sentencing enhancements.
The Government responded that the appeal waiver was valid and enforceable (it may be raised in a merits brief). Defense counsel filed an Anders reply conceding the waiver was enforceable, asserted no non-frivolous issues, and moved to withdraw.
The Clerk notified Whitaker of the Anders filing and invited him to respond; Whitaker did not respond. The court conducted an independent Anders review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Enforceability and scope of the plea appeal waiver	Whitaker argued the government waived enforcement by failing to move to enforce the waiver and challenged sentencing enhancements	Government argued the written waiver was valid, knowingly made, and could be enforced by motion or in its brief	The waiver is valid, knowingly and voluntarily made, covers the sentence (not exceeding statutory max), and precludes Whitaker’s appellate arguments
Adequacy of Anders brief and presence of any non‑frivolous issues	Counsel (in Anders reply) said no non‑frivolous issues exist and conceded waiver enforceability	Government maintained waiver bars review; asked for dismissal	After independent review under Anders, the court found no non‑frivolous grounds outside the waiver, granted counsel’s motion to withdraw, and dismissed the appeal

Anders v. California, 386 U.S. 738 (U.S. 1967) (requirements when counsel seeks to withdraw on grounds appeal is frivolous)
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (three‑prong test for enforceability of plea appeal waivers)
United States v. Ibarra‑Coronel, 517 F.3d 1218 (10th Cir. 2008) (standard of review for appeal‑waiver enforceability)
United States v. Leon, 476 F.3d 829 (10th Cir. 2007) (Anders independent review procedures in Tenth Circuit)
United States v. Clayton, 416 F.3d 1236 (10th Cir. 2005) (government may raise waiver enforcement in merits brief)
United States v. Shockey, 538 F.3d 1355 (10th Cir. 2008) (enumeration of miscarriage‑of‑justice exceptions to enforcing waivers)