Appellate Case: 12-5107    Document: 01018899477       Date Filed: 08/20/2012
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                                                               FILED
                                                   United States Court of Appeals
                      UNITED STATES COURT OF APPEALS       Tenth Circuit

                             FOR THE TENTH CIRCUIT                       August 20, 2012

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
  UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

  v.                                                        No. 12-5107
                                                  (D.C. No. 4:11-CR-00149-CVE-2)
  CHANTZ GERMAINE PATTERSON,                                (N.D. Okla.)
  a/k/a Chantz Terrance Patterson, a/k/a
  Chank,

               Defendant-Appellant.


                              ORDER AND JUDGMENT*


  Before BRISCOE, Chief Judge, EBEL and MATHESON, Circuit Judges.


        Chantz Germaine Patterson pleaded guilty to two counts of conspiracy to

  commit bank robbery, in violation of 18 U.S.C. § 371, two counts of bank robbery

  with a dangerous weapon, in violation of 18 U.S.C. § 2113(a) & (d), and one count of

  using, carrying, and brandishing a firearm during and in relation to a crime of


  *
         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  is not binding precedent, except under the doctrines of law of the case, res judicata,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.
Appellate Case: 12-5107      Document: 01018899477       Date Filed: 08/20/2012    Page: 2



  violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced

  him to a total of 192 months in prison to be followed by three years’ supervised

  release. In addition, the district court entered a restitution order in the amount of

  $4,336. By plea agreement, Mr. Patterson waived the right to appeal his conviction

  or sentence unless his sentence exceeded the statutory maximum. The statutory

  maximum sentence for the charges of conspiracy to commit bank robbery was five

  years, for the charges of bank robbery with a dangerous weapon was twenty-five

  years, and for the firearm charge was life imprisonment. Notwithstanding the appeal

  waiver, Mr. Patterson filed a notice of appeal.

        The government has moved to enforce the appeal waiver under United States

  v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In response,

  Mr. Patterson’s counsel filed a motion to withdraw and an Anders brief. See Anders

  v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to request permission to

  withdraw where counsel conscientiously examines case and determines that appeal

  would be wholly frivolous). Counsel states that there are no nonfrivolous issues

  presented in the record.

        Nonetheless, under Anders, we have conducted an independent review of the

  plea agreement, change of plea hearing transcript, sentencing hearing transcript, and

  motion to enforce. See id. After doing so, we conclude that the requirements for

  enforcing the plea waiver at this time have been satisfied: (1) this “appeal falls

  within the scope of the waiver of appellate rights;” (2) Mr. Patterson “knowingly and


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  voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not]

  result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.

        This court afforded Mr. Patterson an opportunity to file a pro se response to

  the motion to enforce, see Anders, 386 U.S. at 744, which he did. Mr. Patterson

  contends that his attorney provided ineffective assistance of counsel in negotiating

  the guilty plea and in advising him concerning the plea. That claim should be raised

  in a collateral proceeding under 28 U.S.C. § 2255, rather than on direct appeal, since

  the district court has not had an opportunity to develop the factual record on the

  issue. See, e.g., United States v. Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir.

  2008) (recognizing claim of ineffective assistance of trial counsel usually must be

  raised in collateral proceeding); Hahn, 359 F.3d at 1327 & n. 13 (recognizing

  ineffective assistance of counsel as exception to enforcing appellate waiver, but

  reiterating longstanding rule that such claims are properly considered on collateral

  review). Mr. Patterson may properly bring an ineffective assistance of counsel claim

  concerning the negotiation of his appeal waiver in a collateral proceeding.

        We GRANT the government’s motion to enforce the plea agreement, GRANT

  counsel’s motion to withdraw, and DISMISS the appeal.


                                                 Entered for the Court
                                                 Per Curiam




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