Barry Cummings pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341. The district court sentenced him to 15 months in prison, two years of supervised release, and ordered him to pay more than $1.2 million in restitution. Although his plea agreement included an appeal waiver, Cummings filed a direct appeal. The government moved to enforce the waiver, and Cummings' attorney, after reviewing the record, concluded that opposing the motion would be frivolous. Consequently, she filed an Anders response and a motion to withdraw from the case.
The Tenth Circuit applied the standard from United States v. Hahn to determine whether to enforce the appeal waiver. The court conducted an independent review of the record and the parties' submissions to ensure that the waiver was valid and that no claims fell outside its scope. The court found that Cummings did not have a claim properly brought on direct appeal that was outside the waiver's scope. Furthermore, the court determined that Cummings knowingly and voluntarily waived his appellate rights and that enforcing the waiver would not result in a miscarriage of justice. The court noted that if Cummings believed his counsel was ineffective, that claim must be raised in a collateral proceeding, not on direct appeal.
This decision effectively ends Cummings' direct appeal, requiring him to pursue any claims of ineffective assistance of counsel through a collateral proceeding, such as a motion under 28 U.S.C. § 2255. It reinforces the strict enforcement of appeal waivers in the Tenth Circuit when the defendant has entered a knowing and voluntary plea and no miscarriage of justice is evident.
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