UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

CHRISTOPHER JAMES PHILLIPS, 

 Defendant - Appellant.

No. 20-3196

(D.C. No. 6:16-CR-10093-EFM-1)

(D. Kan.)

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ORDER AND JUDGMENT*

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Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

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This matter is before the court on the government’s motion to enforce the 

appeal waiver in Christopher James Phillips’s plea agreement. We grant the 

government’s motion and dismiss the appeal.

Phillips pled guilty to failure to register under the Sex Offender Registration 

and Notification Act, in violation of 18 U.S.C. § 2250(a). On May 1, 2017, the 

district court sentenced him to time served plus five years’ supervised release. On 

September 29, 2020, the district court revoked Phillips’s supervised release for 

* This order and judgment is not binding precedent, except under the doctrines 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

December 21, 2020

Christopher M. Wolpert

Clerk of Court
2

violating the terms thereof and sentenced him to 15 months’ imprisonment with no 

remaining supervision.

Although his plea agreement contained a broad waiver of his appellate rights, 

including his right to appeal “any sentence imposed upon a revocation of supervised 

release,” Mot. for Enforcement of Appeal Waiver Attach. C at 5, he seeks to 

challenge the procedural and substantive reasonableness of his sentence through this 

appeal. The government has moved to enforce the appeal waiver in the plea 

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

(per curiam). 

Under Hahn, we consider “(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. The government asserts that all of the 

Hahn conditions have been satisfied: (1) Phillips’s appeal is within the scope of the 

appeal waiver because he waived the right to challenge “the components of the 

sentence . . . as well as any sentence imposed upon a revocation of supervised 

release,” Mot. for Enforcement of Appeal Waiver Attach. C at 5; (2) he knowingly 

and voluntarily waived his appellate rights; and (3) enforcing the waiver would not 

result in a miscarriage of justice. 

We entered an order directing Phillips to respond to the government’s Hahn

motion. But instead of responding to the Hahn motion, Phillips’s attorney filed a 

motion to withdraw as counsel and a supporting brief under Anders v. California, 
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386 U.S. 738 (1967). Counsel stated that she had “carefully examined the record on 

appeal[,] . . . researched the relevant law,” and “concluded that this appeal does not 

present any factually or legally nonfrivolous issues.” Mot. to Withdraw as Counsel 

at 1. Neither the motion to withdraw nor the supporting Anders brief addressed the 

government’s Hahn motion or the Hahn factors. 

We then entered another order directing Phillips to respond to the 

government’s Hahn motion. In response, Phillips’s attorney stated that she had 

“already filed an Anders brief, indicating that there are no nonfrivolous issues to 

raise. The appeal-waiver inquiry accordingly fails at step one.” Resp. to Mot. for 

Enforcement of Appellate Waiver at 2. But this response did not meaningfully 

address the first Hahn factor, which requires the court to consider whether the appeal 

falls within the scope of the appeal waiver without regard to whether the arguments 

that might be raised have merit.1

 And counsel’s response did not address the second 

or third Hahn factors as it should have.

We therefore invited Phillips to file a pro se response. Phillips dedicated most 

of his response to arguing that his attorney’s motion to withdraw should be denied. 

Regarding the Hahn motion, he stated only that it “would be a gross miscarriage of 

justice” if his appeal is “not brought before the court.” Pro se Resp. at 1.

1 If counsel did not believe that she could advance a non-frivolous argument 

that this appeal falls outside the scope of the appeal waiver, she should have alerted 

this court and her client to that fact in accordance with Anders. 10th Cir. R. 

46.4(B)(1) (“[C]ounsel . . . who believes opposition to a motion to dismiss would be 

frivolous must file an Anders brief.”).
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“The burden rests with the defendant to demonstrate that the appeal waiver 

results in a miscarriage of justice.” United States v. Anderson, 374 F.3d 955, 959 

(10th Cir. 2004). Enforcement of an appellate waiver results in a miscarriage of 

justice when (1) “the district court relied on an impermissible factor such as race,”

(2) “ineffective assistance of counsel in connection with the negotiation of the waiver 

renders the waiver invalid,” (3) “the sentence exceeds the statutory maximum,” or 

(4) “the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327 (internal quotation 

marks omitted). To satisfy this last factor under Hahn, the alleged “error must 

seriously affect the fairness, integrity or public reputation of judicial proceedings.” 

Id. (brackets and internal quotation marks omitted). Phillips has not alleged that any 

of these factors are present here. 

Based on our independent review of the record, we conclude that the Hahn

conditions are satisfied in this case. We therefore grant the government’s motion and 

dismiss the appeal. 

We grant counsel’s motion to withdraw.

Entered for the Court

Per Curiam