United States v. McElrathbey

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEON MCELRATHBEY,

Defendant - Appellant.

No. 20-1190
(D.C. No. 1:18-CR-00501-RBJ-3)
(D. Colo.)
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ORDER AND JUDGMENT
*

_________________________________
Before EID, KELLY, and CARSON, Circuit Judges.
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Deon McElrathbey pled guilty to assault with a dangerous weapon and aiding
and abetting, in violation of 18 U.S.C. §§ 113(a)(3) and 2. The district court
sentenced him to 54 months’ imprisonment. Although his plea agreement contained
a broad waiver of his appellate rights, he seeks to challenge his sentence through this
appeal. The government has moved to enforce the appeal waiver in the plea
agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)
(per curiam).

*
This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit

November 16, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-1190 Document: 010110438062 Date Filed: 11/16/2020 Page: 1

2

Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the
Hahn conditions have been satisfied: (1) McElrathbey’s appeal is within the scope of
the appeal waiver because his sentence was within the range contemplated by the
plea agreement; (2) he knowingly and voluntarily waived his appellate rights; and
(3) enforcing the waiver would not result in a miscarriage of justice. In response to
the government’s motion, McElrathbey, through counsel, states that he “does not
oppose” the motion and “understands that [his] response in non-opposition to the
[motion] will result in dismissal of his appeal by this [c]ourt, and consents to the
same.” Resp. at 1.
Based on this concession and our independent review of the record, we grant
the government’s motion and dismiss the appeal. We do so, however, without
prejudice to McElrathbey’s right to pursue post-conviction relief on the grounds
permitted in his plea agreement.
Entered for the Court
Per Curiam
Appellate Case: 20-1190 Document: 010110438062 Date Filed: 11/16/2020 Page: 2