UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

ROGER TERRY GURLEY, JR., 

a/k/a Dark Side, 

 Defendant - Appellant.

No. 23-6193

(D.C. No. 5:23-CR-00018-F-1)

(W.D. Okla.)

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ORDER AND JUDGMENT*

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Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges.

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Roger Terry Gurley, Jr., appeals from his sentence, but his plea agreement 

contains an appeal waiver. The government now moves to enforce that waiver under

United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). Through 

counsel, Gurley responds that the appeal waiver is unenforceable because of an 

alleged misunderstanding, or allegedly substandard advice from his previous 

attorney, about the scope of the sentencing hearing that would follow his guilty plea. 

We reject these arguments and grant the government’s motion.

* This order and judgment is not binding precedent, except under the doctrines 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 15, 2024

Christopher M. Wolpert

Clerk of Court

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I. BACKGROUND & PROCEDURAL HISTORY

In December 2002, Gurley’s ex-girlfriend and her new boyfriend went to a 

motel in Oklahoma City to retrieve the ex-girlfriend’s belongings from a room she 

had shared with Gurley. Gurley was still there. He and the new boyfriend were both 

armed and they exchanged gunfire, but no one was hurt. Officers later located 

Gurley in possession of a handgun with a scratched-off serial number.

The following month, a grand jury in the Western District of Oklahoma 

indicted Gurley for being a felon in possession of a firearm. The grand jury also 

indicted him for possession of a firearm with an obliterated serial number.

Gurley agreed to plead guilty to the first charge in exchange for dismissal of 

the second charge. The parties executed a plea agreement embodying the terms of 

their deal, including Gurley’s “knowing[] and voluntar[y] waive[r],” Suppl. R. at 31,

of his right to appeal on any ground except the substantive reasonableness of a 

sentence above the range recommended by the sentencing guidelines, should the 

district court impose such a sentence. The agreement also stated that the maximum 

prison sentence for the charge to which he would plead guilty is fifteen years, and the 

sentence ultimately imposed would be up to the district court.

At the ensuing change-of-plea hearing, the district court conducted a thorough 

colloquy to ensure Gurley understood the terms of his agreement, specifically 

including the appellate waiver, which the district court discussed from multiple 

angles. For example, the district court asked Gurley if he understood that he was

waiving his “right to appeal the sentence that I impose in this case, as long as that 

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sentence is within or below the advisory guideline range that I apply in this case.” 

R. at 17. Gurley responded that he understood. The district court continued, “And in 

this agreement, you’re waiving those rights, even though you do not yet know what 

your sentence in this case will be; do you understand that?” R. at 17–18. Gurley 

again responded that he understood. The district court then covered essentially the 

same ground again, emphasizing that it had authority to impose a sentence up to the 

statutory maximum, and confirming that Gurley understood he was giving up his 

right to appeal the sentence other than a sentence above the guidelines range.

At another point during the plea colloquy, the district court specifically 

focused on the indeterminacy of the sentence at the plea phase. The court told 

Gurley that, when deciding on his sentence, it would consider “any other relevant or 

similar conduct, whether or not that conduct is charged in this case,” and Gurley 

confirmed his understanding. R. at 15. The court then stated,

For these reasons, Mr. Gurley, I want you to understand 

that as a practical matter, as you stand before the Court 

today, you have no way of knowing with any certainty 

what the consequences of your plea will be, because I 

don’t have the presentence report and I don’t have the 

other information that I ultimately will have to consider in 

determining the sentence in this case and I don’t know 

what the consequences of your plea will be; do you 

understand that?

Id. Gurley said that he understood.

After covering other aspects of the plea agreement, the district court found that 

Gurley was knowingly and voluntarily pleading guilty. The court therefore accepted 

the plea and set the matter for sentencing.

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At the sentencing hearing, the major dispute was why Gurley had exchanged 

gunfire with his ex-girlfriend’s new boyfriend. The presentence report gave two 

sides of the story. According to the ex-girlfriend, it appeared Gurley had been lying

in wait for her at their old room, intending to shoot her, and he fired the first bullet at 

her. He then chased her and her boyfriend, firing more rounds in their direction. The 

boyfriend managed to fire one round back at Gurley before he and the girlfriend took 

cover in the main office, at which point Gurley fled. According to Gurley, however,

the new boyfriend shot at him, and he returned fire only in self-defense.

The difference between the two stories mattered. If the court found that 

Gurley opened fire with intent to kill, as suggested by the girlfriend’s version of 

events, it could justify a sentencing range calculated by cross-reference to the 

guideline for attempted murder. Factoring in all other adjustments and Gurley’s 

criminal history, the guidelines range based on attempted murder was 168 to 180

months. Without considering attempted murder, the range was 151 to 180 months.

The government played a motel surveillance video for the court. Based on the 

video and other circumstances, the court found intent to kill. The court accordingly

calculated the guidelines range as 168 to 180 months, and it sentenced Gurley to the 

top end of that range, corresponding to the statutory maximum.

This appeal timely followed.

II. ANALYSIS

When the government moves to enforce an appeal waiver, we ask three 

questions: “(1) whether the disputed appeal falls within the scope of the waiver of 

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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.” Hahn, 359 F.3d at 1325. Gurley concedes the first inquiry, i.e., that this 

appeal falls within the scope of the waiver.

As to the second and third inquiries, Gurley presents essentially the same 

argument. He claims he was not informed, ahead of the plea deal, that his guidelines

calculation would ultimately turn on his intent when he fired his gun. He accordingly 

says he received ineffective assistance of counsel before the plea, making the 

resulting plea involuntary (the second Hahn inquiry) and threatening a miscarriage of

justice if this court were to enforce the appeal waiver (the third Hahn inquiry).

“Generally, we only consider ineffective assistance of counsel claims on 

collateral review.” Id. at 1327 n.13. There are “rare [ineffective assistance] claims 

which are fully developed in the record [and] may be brought . . . on direct appeal,”

United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995), but this is not one of 

them. Gurley’s phrasing of the argument shows he is trying to raise it without

developing the record. He says “there is reason to believe [his trial] counsel [who is 

not the same as his appellate counsel] materially misinformed him of the 

consequences of the plea and possible disposition,” Resp. at 7, and “[b]ased on his 

attorney’s arguments at sentencing, one does not have to strain to imagine that the 

advice [he] relied on when deciding to plead guilty was incomplete at best,” id. at 9.

This framing of the issue arises from the fact that Gurley’s trial counsel argued at 

sentencing that Gurley’s discharge of his gun amounted to, at most, assault with a 

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dangerous weapon, rather than intent to kill. Counsel did not argue self-defense, 

as Gurley claims he wanted. Failure to argue self-defense, in Gurley’s view, shows 

that counsel did not understand what was really at stake, both at sentencing and at the 

pre-plea phase.

These inferences from sentencing arguments do not substitute for a record. 

For example, we do not know what Gurley’s trial counsel knew or reasonably should 

have known about likely sentencing factors at the time he advised Gurley about the 

plea deal, and we do not know what advice he actually gave to Gurley at that time. If 

he did not give the advice that Gurley claims he should have received, we do not 

know enough of the circumstances to say whether that lack of advice amounted to 

ineffective assistance. And we do not know if there is any evidence that Gurley 

would have rejected the plea if he had known his sentence could turn in part on his 

intent when he fired his gun. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[T]o 

satisfy the ‘prejudice’ requirement [of an ineffective assistance claim], the defendant 

must show that there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.”).

Thus, whether Gurley frames this as a question of voluntariness or a 

miscarriage of justice, it is not a reason to excuse him from his appeal waiver and 

allow him to argue ineffective assistance in this proceeding.

1

 Moreover, if Gurley 

also means to argue that his plea was involuntary, or that enforcing the appeal waiver 

1 The plea agreement does not forbid Gurley from raising ineffective 

assistance of counsel through a 28 U.S.C. § 2255 motion.

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would be a miscarriage of justice, even if his trial counsel had given effective advice, 

we disagree.

As described previously, the plea agreement affirms that it was entered into 

knowingly and voluntarily, and the district court conducted a thorough plea 

colloquy—which included a specific warning that Gurley’s uncharged conduct might 

factor into his sentence. See Hahn, 359 F.3d at 1325 (“When determining whether a 

waiver of appellate rights is knowing and voluntary, we especially look to . . . 

whether the language of the plea agreement states that the defendant entered the 

agreement knowingly and voluntarily[, and whether the district court conducted] an 

adequate Federal Rule of Criminal Procedure 11 colloquy.”).

As for a miscarriage of justice, Gurley must show that (1) the district court 

relied on an impermissible factor such as race, (2) there was ineffective assistance of 

counsel specifically as to the negotiation of the appeal waiver, (3) the sentence 

exceeds the statutory maximum, or (4) the waiver is otherwise unlawful. See Hahn, 

359 F.3d at 1327. “[This] list is exclusive.” United States v. Shockey, 538 F.3d 1355, 

1357 (10th Cir. 2008). Gurley does not claim his alleged misunderstanding about the 

focus of the sentencing hearing fits under any of these possibilities. We therefore

find no potential miscarriage of justice.

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III. CONCLUSION

We grant the government’s motion and dismiss this appeal.

Entered for the Court

Per Curiam

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