UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

KITIRA CHRISTINE HAYS, a/k/a Kitira 

Hays, 

 Defendant - Appellant. 

No. 22-1064 

(D.C. No. 1:21-CR-00024-RBJ-2) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before McHUGH, MURPHY, and CARSON, Circuit Judges. 

_________________________________ 

After examining the Anders brief filed by Defendant-Appellant Kitira Hays’s 

counsel and the entire appellate record, this panel has determined unanimously that 

oral argument would not materially assist 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. 

Hays pleaded guilty to aiding and abetting Hobbs Act robbery, in violation of 

18 U.S.C. §§ 2, 1951, and using or carrying a firearm during and in relation to a 

crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A). Hays waived her 

* This order and judgment is not binding precedent, except under the doctrines 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 

March 30, 2023

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 1
2 

right to appeal except for the following issue: does her conviction for aiding and 

abetting Hobbs Act robbery amount to a “crime of violence” for purposes of 

§ 924(c).1

 After answering that question in the affirmative and, therefore, denying 

her motion to dismiss the § 924(c) charge, the district court sentenced Hays to a total 

term of imprisonment of 177 months, consisting of 57 months as to the Hobbs Act 

conviction and 120 months as to the § 924(c) conviction. After filing a timely notice 

of appeal, Hays’s counsel filed in this court a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), asserting he could find no meritorious basis for appeal and 

moving to withdraw as counsel. For those reasons set out below, this court grants

counsel’s motion to withdraw and dismisses this appeal. 

This appeal is before the court on Hays’s counsel’s Anders brief. Pursuant to 

Anders, counsel may “request permission to withdraw where counsel conscientiously 

examines a case and determines that any appeal would be wholly frivolous.” United 

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to 

submit an appellate brief “indicating any potential appealable issues.” Id. Once 

notified of counsel’s brief, the defendant may then submit additional arguments to 

this court. Id. We “must then conduct a full examination of the record to determine 

whether defendant’s claims are wholly frivolous.” Id. Despite being notified of her 

entitlement to do so on at least two occasions, Hays did not file a brief in response to 

1

 As aptly noted by Hays’s appellate counsel, there exist no facts in the record 

supporting a non-frivolous argument that the partial waiver of appellate rights is 

unenforceable under the standard set out by this court in United States v. Hahn, 359 

F.3d 1315 (10th Cir. 2004) (en banc). 

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counsel’s Anders brief. The government also declined to file a brief. Thus, our 

resolution of the case is based on counsel’s Anders brief and this court’s independent 

review of the record. That independent review demonstrates the issue set out in 

counsel’s Anders brief is wholly frivolous. 

This court has squarely held that Hobbs Act robbery is a crime of violence 

under § 924(c). United States v. Melgar-Cabrera, 892 F.3d 1053, 1060-66 (10th Cir. 

2018). “[T]he fact that the defendant in Melgar-Cabrera did not provide the same or 

similar argument as [the] argument here is of no moment; we are bound to follow 

Melgar-Cabrera absent a contrary decision by the Supreme Court or en banc 

reconsideration of Melgar-Cabrera.” United States v. Baker, 49 F.4th 1348, 1358 

(10th Cir. 2022). Furthermore, as recognized in counsel’s Anders brief, the Supreme 

Court’s post-Melgar-Cabrera decision in United States v. Taylor, 142 S. Ct. 2015, 

2020 (2022), does not in any way call into question this court’s holding in MelgarCabrera. Baker, 49 F.3d at 1360. Finally, the fact Hays pleaded guilty to aiding and 

abetting Hobbs Act robbery does not create a reasonable question as to whether her 

conviction qualifies as a “crime of violence” for purposes of § 924(c). See United 

States v. Deiter, 890 F.3d 1203, 1214-16 (10th Cir. 2018) (holding that aiding and 

abetting federal bank robbery is a “violent felony” under the elements clause of the 

Armed Career Criminals Act). As Deiter makes clear, “aiding and abetting is not a 

separate crime but simply eliminates the legal distinction between aiders and abettors 

and principals. Therefore, it makes sense to look to the underlying statute of 

conviction, rather than § 2, to decide whether the elements clause is satisfied.” Id. at 

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1216; see also United States v. Styles, No. 19-3217, 2022 WL 34126, at *2-3 (3d Cir. 

Jan. 4, 2022) (collecting cases, including this court’s decision in Deiter for the 

proposition that aiding and abetting a crime of violence is itself a crime of violence 

under the elements clause of § 924(c)(3)(A)). 

Pursuant to the Anders mandate, this court has undertaken an independent 

review of the entire record in this case. Our review demonstrates that issue raised in 

counsel’s Anders brief is undeniably frivolous. Likewise, this court’s review of the 

entire record reveals no other potentially meritorious issues. This is particularly true 

given that the record reveals Hays validly waived her appellate rights as to all issues 

except for the issue set out in counsel’s Anders brief. Accordingly, we GRANT

counsel’s motion to withdraw and DISMISS this appeal. 

Entered for the Court 

Michael R. Murphy 

Circuit Judge 

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