UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DERRICK JAY ALBERS, 

 Defendant - Appellant. 

No. 14-6220 

(D.C. No. 5:14-CR-0082-C-1) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, KELLY and GORSUCH, Circuit Judges. 

 

 Pursuant to a plea agreement with a broad appeal waiver, Derrick Jay Albers 

pleaded guilty on May 7, 2014, to one count of conspiracy to commit wire fraud, in 

violation of 18 U.S.C. §§ 1343 and 1349, and was sentenced on October 23, 2014, to 

120 months’ imprisonment. Despite his appeal waiver, Mr. Albers filed a pro se 

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). On 

 

* 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 14, 2015

Elisabeth A. Shumaker 

Clerk of Court
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November 20, 2014, we appointed new counsel to represent Mr. Albers in this 

matter. In light of the response prepared by counsel, we grant the government’s 

motion to enforce and dismiss this appeal. 

 Under Hahn, we ordinarily consider three factors: “(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. But 

Mr. Albers “do[es] not contest the government’s motion to enforce the plea 

agreement to the extent it seeks to bar a direct appeal.” Aplt. Resp. at 6. As a result, 

we need not address the Hahn factors in this instance. See United States v. Porter, 

405 F.3d 1136, 1143 (10th Cir. 2005) (stating that court need not address Hahn factor 

not in dispute). 

 Mr. Albers argues, however, that the appeal waiver should not be read to 

foreclose a future collateral attack raising a claim of ineffective assistance of trial 

counsel as to the plea agreement or his sentence. See Aplt. Resp. at 6. He “agree[s] 

with the government that the evidence in the record is insufficient to raise [this] issue 

in a direct appeal,” id. at 2, but he wishes “to preserve his ability to collaterally 

attack the plea agreement or sentence,” id. at 6. Because the government’s motion is 

directed solely to the appeal now before us, we need not and do not decide whether 

the appeal waiver bars Mr. Albers from filing a future collateral attack raising a claim 

of ineffective assistance of counsel. Cf. United States v. Cockerham, 237 F.3d 1179, 
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1181 (10th Cir. 2001) (addressing a motion to enforce an appeal waiver against a 

motion under 28 U.S.C. § 2255). 

 Accordingly, we grant the government’s motion to enforce the appeal waiver 

as to this appeal, and the appeal is dismissed. 

 Entered for the Court 

 Per Curiam