                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 26, 2013
                                                               Elisabeth A. Shumaker
                     UNITED STATES COURT OF APPEALS                Clerk of Court

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-3051
 v.
                                              (D.C. No. 6:11-CR-10097-JTM-1)
                                                          (D. Kan.)
 CARL R. KIRKLEY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


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


          Defendant-Appellant Carl R. Kirkley pleaded guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Kirkley filed a

timely notice of appeal. We are addressing Mr. Kirkley’s appeal under the




      *
             This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in 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.
analytical framework established by Anders v. California, 386 U.S. 738 (1967). 1

For the reasons that follow, we affirm the judgment and sentence of the district

court. We also grant the motion to withdraw of Mr. Kirkley’s counsel.

                                          I

      Mr. Kirkley was charged in a one-count superseding information for being

a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). He entered into a plea agreement with the government whereby he

pleaded guilty to the one-count superseding information. Notably, the plea

agreement included the parties’ joint recommendation of a forty-eight month term

of imprisonment and a waiver of Mr. Kirkley’s appellate rights.

      Mr. Kirkley submitted a single objection to the Presentence Investigation

Report (“PSR”), contesting the PSR’s conclusion that he possessed a sawed-off

shotgun, but he recognized that “if the Court accepts the parties’ joint

recommendation [for a forty-eight month sentence], the calculation of the total

offense level will not affect the sentence.” R., Vol. I, at 128 (Sentencing Mem.,

filed Feb. 14, 2012). The district court accepted the parties’ joint sentencing

recommendation and sentenced Mr. Kirkley to forty-eight months’ imprisonment



      1
              By way of summary, the Supreme Court held in Anders that, if
defense counsel determines that his client’s appeal is “wholly frivolous,” counsel
must inform the court, request permission to withdraw, and also submit “a brief
referring to anything in the record that might arguably support the appeal.” 386
U.S. at 744.

                                         -2-
and three years of supervised release.

         Shortly thereafter, Mr. Kirkley’s defense counsel moved to withdraw as

counsel and asked the district court clerk to file a notice of appeal on Mr.

Kirkley’s behalf, noting that Mr. Kirkley wished “to file an appeal based upon

what appears to be ineffective assistance of counsel and prosecutorial

misconduct.” Id. at 137 (Mot. for Withdrawal of Counsel, filed Feb. 21, 2012).

Following a hearing on the matter, the district court granted the motion, appointed

substitute counsel for Mr. Kirkley, and ordered the clerk to file a notice of appeal

on Mr. Kirkley’s behalf.

                                           II

         Again, we are addressing Mr. Kirkley’s appeal under the analytical

framework established by Anders. Pursuant to that framework, Mr. Kirkley’s

counsel filed an Anders brief that set forth the potential issues for appeal and

requested permission to withdraw. Mr. Kirkley filed a response to the Anders

brief.

         Our discussion proceeds by first addressing the potential issues identified

in the Anders brief. Next, we briefly examine whether Mr. Kirkley entered into

his guilty plea knowingly and voluntarily. Finally, we conclude by addressing

Mr. Kirkley’s response to the Anders brief, which does not address the issues

raised in the Anders brief.




                                           -3-
                                          A

      Turning first to the Anders brief, it raises three potential issues: (1) whether

Mr. Kirkley waived substantially all of his appellate rights in his plea agreement;

(2) whether Mr. Kirkley’s sentence was procedurally and substantively

reasonable; and (3) whether Mr. Kirkley can bring an ineffective assistance of

counsel claim on direct appeal. We address each of these issues in turn.

                                          1

      By the terms of his plea agreement with the government, Mr. Kirkley

waived nearly all of his appellate rights. Counsel, in the Anders brief, reasons

that this appellate waiver forecloses Mr. Kirkley from raising on appeal all but

the two types of claims that fall outside of the waiver’s scope—viz., claims of

prosecutorial misconduct and ineffective assistance of counsel. This is so, says

counsel, because the record demonstrates that our three-factor test used to

determine whether an appeal will be dismissed based on an appellate waiver has

been met. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en

banc) (explicating the three-factor test). In particular, counsel tacitly indicates

that this appeal does not implicate any non-frivolous claims involving the two

areas that fall outside the waiver’s scope. Aplt. Anders Br. at 13 (“[T]his appeal

falls within the scope of the appeal waiver.”).

      The three factors we assess are: “(1) whether the disputed appeal falls

within the scope of the waiver of appellate rights; (2) whether the defendant

                                         -4-
knowingly and voluntarily waived his appellate rights; and (3) whether enforcing

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

accord United States v. Salas-Garcia, 698 F.3d 1242, 1254–55 (10th Cir. 2012)

(applying the three-part test from Hahn); United States v. Cudjoe, 634 F.3d 1163,

1164–67 (10th Cir. 2011) (same).

      Although a good case could be made that the three Hahn factors are met in

this case, the government has forfeited its right to enforce the appellate waiver by

not raising it on appeal. The government filed a letter in our court stating only

that it “will not be filing a response brief unless requested to do so by the Court.”

Letter, at *1 (Letter from Gov’t to Tenth Circuit Clerk, dated July 11, 2012).

This is insufficient to invoke Mr. Kirkley’s appellate waiver, thus any right to

enforce it is forfeited. See United States v. Calderon, 428 F.3d 928, 930–31 (10th

Cir. 2005) (refusing to enforce an appellate waiver not raised by the government,

even though “defense counsel has filed an Anders brief noting the [appeallate]

waiver,” and noting that “[t]he government cannot rely on defense counsel’s

raising the argument in an Anders brief as a substitute for fulfilling its own

obligation to seek enforcement of the plea agreement”); see also United States v.

Coates, 483 F. App’x 488, 497 (10th Cir. 2012) (“Because the government did not

file a motion invoking the waiver under Tenth Circuit Rule 27.2(A)(1)(d), did not

file a brief invoking the waiver, and did not explicitly cite the appeal waiver in its

letter to the Court, the waiver has not been invoked, and the government has

                                         -5-
forfeited its right to enforce it.”); United States v. Molina-Pereyra, 296 F. App’x

641, 643 n.1 (10th Cir. 2008) (“In notifying this court of its intent not to file an

answer brief, . . . the government never mentioned the appeal waiver. Therefore,

we find that the government has forfeited its opportunity to enforce the waiver.”).

Accordingly, Mr. Kirkley’s appellate waiver does not foreclose any of his claims

on appeal.

                                           2

       As addressed in the Anders brief, it does not appear that Mr. Kirkley has

any non-frivolous bases to challenge his sentence. The district court calculated

Mr. Kirkley’s U.S. Sentencing Guidelines range to be fifty-seven to seventy-one

months, but ultimately followed the parties’ joint sentencing recommendation in

the plea agreement, sentencing Mr. Kirkley to forty-eight months’ imprisonment.

      Sentencing challenges come in two forms—viz., challenges to the

procedural reasonableness or the substantive reasonableness of the district court’s

sentence. “Procedural reasonableness focuses on whether the district court erred

in ‘calculating or explaining the sentence.’” United States v. Halliday, 665 F.3d

1219, 1222 (10th Cir. 2011) (quoting United States v. Friedman, 554 F.3d 1301,

1307 (10th Cir. 2009)). Procedural errors include “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

                                          -6-
chosen sentence—including an explanation for any deviation from the Guidelines

range.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)) (internal quotation marks omitted).

        No procedural errors are apparent from the record. The district court

calculated the Guidelines range and clearly did not treat the Guidelines as

mandatory. Further, the district court, albeit succinctly, considered the § 3553(a)

factors and stated that the forty-eight month sentence was “sufficient but not

greater than necessary to meet sentencing purposes.” R., Vol. II, at 256 (Hr’g Tr.,

held Feb. 16, 2012). To the extent that Mr. Kirkley could assert procedural error

with respect to the PSR’s recitation of relevant conduct—given that such conduct

was the subject of his sole objection to the PSR—Mr. Kirkley recognized in his

sentencing memorandum that “if the Court accepts the parties’ joint

recommendation [for a forty-eight month sentence], the calculation of the total

offense level will not affect the sentence.” Id., Vol. I, at 128. And the court did

just that. 2

        As to substantive reasonableness, any error in this respect was invited. See


        2
              In his sentencing memorandum, Mr. Kirkley requested that the
district court “rule on the disputed facts . . . or find that a ruling is not necessary
because the matter will not affect sentencing or be considered by the Court in
sentencing.” R., Vol. I, at 129. The district court followed Mr. Kirkley’s request;
it noted Mr. Kirkley’s objection to the inclusion of certain conduct in the PSR,
but stated: “I’ll tell you right now that I intend to follow the parties’
recommendation on sentencing in this case, so it’s not going to have any impact
on [Mr. Kirkley’s] sentence . . . [so] I need not rule on it.” Id., Vol. II, at 255.

                                          -7-
United States v. Mancera-Perez, 505 F.3d 1054, 1059 (10th Cir. 2007) (“When

the appellate argument for a lower sentence was not raised at any time before the

district court, and when, to the contrary, the defendant affirmatively endorses the

appropriateness of the length of the sentence before the district court, we

conclude that if, there was error, it was invited and waived.”); see also Coates,

483 F. App’x at 497 (“In light of this plea agreement [that contained a twenty-

year stipulated sentence], we hold that [the defendant’s] sentencing challenges

necessarily must fail because any error by the district court in setting the length

of the sentence at twenty years was invited.”). Just as in Mancera-Perez, not only

did Mr. Kirkley not object to the length—i.e., substantive reasonableness—of his

sentence before the district court, he affirmatively endorsed its substantive

reasonableness by entering into a plea agreement in which he agreed to a forty-

eight month sentence.

                                          3

      To the extent that Mr. Kirkley wishes to pursue an ineffective assistance of

counsel claim, he cannot pursue it on direct appeal. “Ineffective assistance of

counsel claims should be brought in collateral proceedings, not on direct appeal.

Such claims brought on direct appeal are presumptively dismissible, and virtually

all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc). And this is true “even if the record appears to need no further

development . . . so the reviewing court can have the benefit of the district court’s

                                         -8-
views.” Id.

      We will, however, consider an ineffective assistance of counsel claim on

direct appeal if “the issue was raised before and ruled upon by the district court

and a sufficient factual record exists.” United States v. Flood, 635 F.3d 1255,

1260 (10th Cir. 2011). Here, neither of these circumstances exist. While the

district court was made aware of Mr. Kirkley’s desire to raise an ineffective

assistance of counsel claim on appeal, Mr. Kirkley did not present such a claim to

the district court for adjudication; instead, the alleged ineffectiveness was put

before the district court as the justification for the motion to withdraw of Mr.

Kirkley’s initial counsel.

      Second, at the hearing on the motion to withdraw, Mr. Kirkley expressed

that he “was rushed in to [sic] signing the plea” and that he did not know “that

this relevant conduct stuff was going to be added to try to boost up the [offense

level] points.” R., Vol. II, at 266–67 (Hr’g Tr., held Feb. 29, 2012). Given the

abbreviated nature of these allegations, a record will need to be developed

regarding how Mr. Kirkley was allegedly rushed into signing his plea agreement

and what off-the-record conversations Mr. Kirkley had with his counsel regarding

the plea agreement and the relevant conduct found in the PSR. Ineffective

assistance of counsel claims based on such allegations “require[] precisely the

type of factual determinations contemplated by Galloway, which are beyond the

scope of the record on direct appeal.” United States v. Avelar, 80 F.3d 430, 431

                                         -9-
(10th Cir. 1996). Accordingly, any ineffective assistance of counsel claim that

Mr. Kirkley desires to raise must be presented in a collateral proceeding. 3

                                          B

      Although not directly raised in the Anders brief, our independent

examination of the record reveals that there is no basis for a challenge to the

validity of Mr. Kirkley’s guilty plea. For a guilty plea to be valid, it must be

entered into knowingly and voluntarily. See United States v. Mitchell, 633 F.3d

997, 1001 (10th Cir. 2011) (“If a guilty plea is not knowing and voluntary, it is

void.”); United States v. Gigley, 213 F.3d 509, 516 (10th Cir. 2000) (“[A] plea is

valid if it represents a voluntary and intelligent choice among the alternatives

open to the defendant.”). The record demonstrates that Mr. Kirkley entered his

guilty plea knowingly and voluntarily. The plea agreement itself, signed by Mr.

Kirkley, states that he

             has had sufficient time to discuss th[e] case, the evidence, and
             this agreement with [his] attorney and . . . is fully satisfied with
             the advice and representation provided by [his] counsel. Further,
             [he] acknowledges that he has read the plea agreement,
             understands it and agrees it is true and accurate and not the result
             of any threats, duress or coercion . . . . [He] acknowledges that
             [he] is entering into this agreement and is pleading guilty because
             [he] is guilty and is doing so freely and voluntarily.


      3
             Although Mr. Kirkley’s trial counsel informed the district court that
Mr. Kirkley sought to appeal based on ineffective assistance of counsel and
prosecutorial misconduct, neither his appellate counsel nor Mr. Kirkley has raised
a prosecutorial misconduct claim on appeal. Further, our independent review of
the record does not reveal any basis for such a claim.

                                         -10-
R., Vol. I, at 122–23 (Plea Agreement, filed Dec. 1, 2011). Furthermore,

following a lengthy plea hearing during which the district court explained to Mr.

Kirkley the rights he was waiving by pleading guilty and ensured that his counsel

had discussed those rights with him, Mr. Kirkley pleaded guilty, and the district

court found that he did so knowingly and voluntarily.

                                         C

      Turning finally to Mr. Kirkley’s response to the Anders brief, it provides no

non-frivolous grounds for appeal, nor addresses any of the issues already

discussed. Instead, the essence of his response is two-fold. First, he argues that

he was in some way misinformed or misled by his counsel. See, e.g., Resp. to

Anders Br. at 2 (“The Defendant was not informed of the nature of the

accusation.”); id. (stating that “Defense Counsel advised [Mr. Kirkley] to waive

[the indictment, amounting to] a total miscarriage of justice”). 4 We construe

these allegations as an ineffective-assistance-of-counsel claim, which, as

discussed supra, must be brought in a collateral proceeding.

      Second, Mr. Kirkley contends that the district court lacked jurisdiction.

See, e.g., id. at 1 (“[T]he Court, Prosecutor, Defense Counsel and Counsel for the

Appellant, intentually [sic] concealed the jurisdiction or nature of the


      4
              We note that Mr. Kirkley signed a waiver of indictment before the
district court after the court had thoroughly explained to him the rights he was
waiving by doing so.

                                        -11-
accusation.”); id. at 2 (“The Court lacked subject matter jurisdiction and cannot

accept a plea nor can the Court hand down judgment.”); id. at 3 (“[T]he Court

lacks subject matter jurisdiction and can not and must not proceed.”). However,

the district court clearly had jurisdiction pursuant to 18 U.S.C. § 3231, which

provides district courts with jurisdiction over “all offenses against the laws of the

United States.”

                                         III

      Having conducted a thorough, independent examination of the record, we

can confidently conclude that there are no non-frivolous issues to present on

appeal. Therefore, we AFFIRM the district court’s judgment and sentence.



                                        ENTERED FOR THE COURT



                                        Jerome A. Holmes
                                        Circuit Judge




                                         -12-
