Full Opinion

Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 28, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 25-7095 (D.C. No. 6:25-CR-00066-JFH-1) ANDREW FRANK LERBLANCE, a/k/a (E.D. Okla.) Andrew Frank Lerblance, Jr., Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HARTZ, TYMKOVICH, and McHUGH, Circuit Judges. _________________________________ Andrew Frank Lerblance pled guilty to distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) & 841(b)(1)(B). The district court sentenced him to 84 months’ imprisonment, to be followed by a four-year term of supervised release. He appealed. Counsel has filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after “conscientious After examining the briefs and 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 2 examination” of the record, counsel finds the appeal “wholly frivolous,” counsel may move to withdraw and contemporaneously file a “brief referring to anything in the record that might arguably support the appeal”). Counsel explains that Lerblance waived his right to appeal in his written plea agreement. The waiver permitted him to appeal if his sentence exceeded the statutory maximum, but the sentence did not. Counsel therefore contends the only arguable issue is whether Lerblance knowingly and voluntarily waived his right to appeal, and that issue is meritless. Lerblance filed a pro se response. The government declined to file a brief but stated in a letter that the Anders brief correctly sets forth the applicable facts and law. Based on our review of the Anders brief, the record, and Lerblance’s response, we conclude that Lerblance’s appeal is wholly frivolous. See id. We therefore dismiss the appeal and grant counsel’s motion to withdraw. BACKGROUND The government filed an indictment charging Lerblance with knowingly and intentionally distributing 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine. Lerblance waived indictment and a jury trial and agreed to plead guilty to the charge. In connection with his guilty plea, Lerblance signed a written plea agreement. The plea agreement contained a waiver of his appellate and post-conviction rights. That waiver provided in pertinent part: In consideration of the promises and concessions made by the United States in this Plea Agreement, the defendant knowingly and voluntarily 2 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 3 agrees and understands the following appellate and post-conviction terms of this agreement: a. the defendant waives the right to directly appeal the conviction and sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a); b. the defendant reserves the right to appeal from a sentence which exceeds the statutory maximum[.] R., vol. 1 at 20. The district court determined Lerblance’s guilty plea was knowing and voluntary and accepted it. At sentencing, the court determined that given his offense level of 28 and criminal history category of IV, his advisory guideline sentencing range was 110 to 137 months. It discussed the sentencing factors identified in 18 U.S.C. § 3553(a), noting Lerblance’s long history of drug trafficking, his multiple felony convictions, and his health situation. It sentenced him below the Guideline range to 84 months’ imprisonment, to be followed by a four-year period of supervised release. DISCUSSION Counsel’s Anders motion is predicated on Lerblance’s appeal waiver. The government did not assert the waiver either in a motion to dismiss or through a responsive brief. In general, “this Court’s precedents preclude dismissal on the basis of a waiver of appeal where the government has neither filed a motion to enforce the waiver nor raised the waiver in its brief,” and thus “utterly neglects to invoke the waiver in this court.” United States v. Calderon, 428 F.3d 928, 930–31 (10th Cir. 2005). But if, in response to an Anders brief, the government files a letter or notice 3 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 4 that “explicitly cites an appeal waiver” then “the waiver is not waived and must be enforced” if the requirements for enforcement are otherwise met. United States v. Contreras-Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006) (finding sufficient statement in government’s letter that the appeal was “clearly barred by the [defendant’s] appeal waiver signed . . . as part of his plea agreement” (internal quotation marks omitted)). Here, the government’s notice stated that it did not intend to file a response to the brief because “[t]he brief filed by [Lerblance’s] counsel correctly sets forth the applicable facts and law.” Gov’t’s Notice, Dkt. No. 45. Although it is a close question, we conclude the government sufficiently invoked the appeal waiver. The “applicable facts and law” in counsel’s Anders brief, which the government cited, explained why Lerblance’s appeal waiver barred this appeal. We will therefore proceed to consider whether the requirements for enforcement of the appeal waiver were met. We will enforce an appeal waiver if the appeal falls within the scope of the waiver, the defendant knowingly and voluntarily waived his appellate rights, and enforcing the waiver will not result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). Scope of the Waiver Lerblance’s offense carried a statutory maximum sentence of forty years’ (480 months) imprisonment and not less than four years of supervised release. He waived his right to appeal the sentence and conviction unless the court imposed a sentence beyond the statutory maximum. The district court sentenced him to 84 months’ 4 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 5 imprisonment, to be followed by four years of supervised release. His sentence did not exceed the statutory maximum and thus this appeal falls within the scope of his appeal waiver. Knowing and Voluntary Nature of Waiver Lerblance’s written plea agreement required him to initial each page and to sign both the appeal waiver section and the document as a whole, which he did. At the change of plea hearing, the government counsel described the terms of the appeal waiver in open court. The district court made thorough inquiries to ensure Lerblance was knowingly and voluntarily entering his guilty plea, that he had read the plea agreement and did not have questions about it for his attorney, and that the written plea agreement reflected his understanding of his agreement with the government. The court stated it was satisfied that he was knowingly, intelligently, and willfully waiving his rights and entering his guilty plea. In his objections to the presentence report (PSR), however, trial counsel asserted that Lerblance did not knowingly and voluntarily waive his appellate and post-conviction rights and that enforcement of the appeal waiver would represent a miscarriage of justice. See R., vol. II (sealed) at 5. Counsel insisted that even if Lerblance had signed a plea agreement waiving his appellate and post-conviction rights, the PSR mentioned the appeal waiver and therefore he could assert in response that he did not intend to waive those rights. Counsel provided no specific facts to support this about-face. Both the government and the probation officer responded to 5 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 6 the objection by detailing the evidence that Lerblance had voluntarily and knowingly waived his right to appeal. Counsel did not renew this belated concern at sentencing. At the sentencing hearing, the court reiterated that after reviewing the record, it determined Lerblance’s guilty plea had been entered knowingly and voluntarily. R., vol. III at 9. The court inquired whether Lerblance had waived his right to appeal, and the government responded that he had. Id. at 10. The court then advised Lerblance of his limited right to appeal, given the waiver, and of the time period for filing a notice of appeal. During this colloquy, counsel did not raise any concern that the appeal waiver was in any way invalid. Shortly thereafter counsel indicated he had nothing further to add. Under these circumstances, counsel’s conclusory statements in the objections to the PSR are insufficient to create a non-frivolous issue whether Lerblance’s appeal waiver was knowing and voluntary. Miscarriage of Justice Enforcement of an appeal waiver results in a miscarriage of justice only when (1) the district court relied on an impermissible factor such as race; (2) counsel’s ineffective assistance in negotiating the waiver makes it invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful, seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Hahn, 359 F.3d at 1327. In addition, ineffective assistance claims must generally be raised in a collateral proceeding rather than on direct appeal. United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005). Our independent review under these standards 6 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 7 has uncovered no basis for concluding that enforcement of Lerblance’s appeal waiver would result in a miscarriage of justice. In his pro se response, Lerblance alludes to the Supreme Court’s recent decision in Hunter v. United States, 608 U.S. 713 (2026). Hunter explained that an appeal waiver may be set aside under the miscarriage-of-justice standard “only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary” and “discredit the judiciary’s commitment to the law.” Id. at 727. “The point of the miscarriage-of-justice limit . . . is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.” Id. at 728. Lerblance points us to no fact or error that would satisfy this “high bar” in his case. Id. at 727. Jurisdictional Issues In their Anders-related submissions, both counsel and Lerblance discuss potential jurisdictional challenges based on Lerblance’s purported status as an Indian who committed his offense in Indian Country. 1 Counsel mentions in passing McGirt v. Oklahoma, 591 U.S. 894 (2020), but concedes that McGirt does not apply to 1 Neither counsel nor Lerblance point to record evidence that he is an Indian or that his crime occurred in Indian country. We will assume, for purposes of argument, that he could establish those facts. 7 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 8 Lerblance because his proceedings occurred in federal, not state, court. There does not appear to be any basis for application of McGirt to Lerblance’s conviction. In his pro se brief, Lerblance contends that: (1) because his offense is not enumerated or included in two enclave statutes—the Indian Country Crimes Act, 18 U.S.C. § 1152, and the Major Crimes Act, 18 U.S.C. § 1153—but (2) is instead reserved to tribal courts, he should have been tried in tribal court, not in federal court. But his jurisdictional argument fails because federal laws of general application, in which the situs of the offense is not an element of the crime, apply on Indian reservations. See, e.g., United States v. Gachot, 512 F.3d 1252, 1254 (10th Cir. 2008). The statute under which Lerblance was charged and convicted, 21 U.S.C. § 841(a)(1), is such a generally applicable federal criminal law. See United States v. Blue, 722 F.2d 383, 385-86 (8th Cir. 1983). 2 The federal courts therefore had jurisdiction to adjudicate his offense. 2 Tribal members are not “subject to general federal criminal statutes” if “a particular Indian right or policy is infringed by enforcement of the law.” United States v. Barquin, 799 F.2d 619, 621 (10th Cir. 1986). To the extent Lerblance argues that his prosecution in federal court offends tribal sovereignty, there is no indication that any particular Indian right or policy is infringed by enforcement of § 841(a)(1) in Indian Country against Indians. 8 Appellate Case: 25-7095 Document: 47-1 Date Filed: 10/28/2026 Page: 9 CONCLUSION We dismiss the appeal and grant defense counsel’s motion to withdraw. Entered for the Court Carolyn B. McHugh Circuit Judge 9