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 de termined 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 abetti ng Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951, and using or carryi ng 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 bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt 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: 12 right to appeal except for the following issue: does he r 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 th e 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 mont hs as to the Hobbs Act conviction and 120 mont hs as to the § 924(c) conviction. After filing a timely notice of appeal, Hays’s couns el filed in this cour t a brief pursuant to Anders v. California , 386 U.S. 738 (1967), asserti ng he could find no meritori ous basis for appeal and moving to withdraw as counsel. For t hose reasons set out below, this court grants counsel’s motion to withdraw and dismisses this appeal. This appeal is before th e court on Hays’s counsel’s Anders brief. Pursuant to Anders , counsel may “request permission to w ithdraw where counsel conscientiously examines a case and determines that a ny 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 s ubmit additional arguments to this court. Id. We “must then conduct a full exam ination of the record to determine whether defendant’s claims are wholly frivolous.” Id . Despite being notified of her entitlement to do so on at leas t two occasions, Hays did not file a brief in response to

1 As aptly noted by Hays’s appellate counsel, there exis t 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). Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 23 counsel’s Anders brief. The government also decl ined 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 brie f is wholly frivolous. This court has squarely he ld 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 in to question this c ourt’s holding in Melgar

Cabrera

. 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 elim inates 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 wh ether the elements clau se is satisfied.” Id. at Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 34 1216; see also United States v. Styles , No. 19-3217, 2022 WL 3412 6, at *2-3 (3d Cir. Jan. 4, 2022) (collecting cases, in cluding 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 clau se of § 924(c)(3)(A)). Pursuant to the Anders mandate, this court has unde rtaken an independent review of the entire record in this case. Our review demons trates that issue raised in counsel’s Anders brief is undeniably frivolous. Like wise, this court’s review of the entire record reveals no other po tentially meritorious issues. This is particularly true given that the record reveals Hays validly waived her appella te rights as to all issues except for the issue se t 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 Appellate Case: 22-1064 Document: 010110835315 Date Filed: 03/30/2023 Page: 4