3. Analysis
A. Precedents Cited and Their Influence
Anders v. California, 386 U.S. 738, 744 (1967)
Anders v. California supplied the procedural framework. When counsel conscientiously examines the record and concludes that an appeal is wholly frivolous, counsel may seek withdrawal while submitting a brief identifying anything that might arguably support the appeal.
This process does not make counsel’s assessment conclusive. The Tenth Circuit reviewed the brief, the record, and Lerblance’s response independently. It examined both waiver enforcement and the jurisdictional theory before concluding that no nonfrivolous appellate issue existed. The decision illustrates that an appeal waiver does not eliminate the court’s review obligations in an Anders proceeding.
United States v. Calderon, 428 F.3d 928, 930–31 (10th Cir. 2005)
United States v. Calderon established the threshold limitation on enforcing an appeal waiver: ordinarily, the court will not dismiss on that basis when the government neither moves to enforce the waiver nor raises it in its brief and thus entirely neglects to invoke it.
That principle mattered because defense counsel—not the government—had initially relied on the waiver. The court therefore could not simply treat the agreement’s existence as sufficient. It first had to decide whether the government’s notice amounted to invocation of the waiver.
United States v. Contreras-Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006)
United States v. Contreras-Ramos qualified the procedural rule in United States v. Calderon. A government letter or notice responding to an Anders brief can preserve reliance on an appeal waiver when it explicitly identifies that waiver. A full responsive brief or separate enforcement motion is therefore not invariably necessary.
The government’s notice in Lerblance’s case was less explicit. It stated only that counsel’s brief “correctly sets forth the applicable facts and law.” The panel nevertheless found invocation sufficient because the adopted brief explained why the appeal waiver barred the appeal. This is the opinion’s most distinctive procedural application: contextual adoption of a waiver-based analysis was enough, although the panel acknowledged the closeness of the question.
United States v. Hahn, 359 F.3d 1315, 1325, 1327 (10th Cir. 2004) (en banc)
United States v. Hahn provided the controlling three-part framework for enforcement. The court asks whether the appeal falls within the waiver’s scope, whether the defendant knowingly and voluntarily waived appellate rights, and whether enforcement would result in a miscarriage of justice.
It also supplied the four recognized miscarriage-of-justice circumstances: reliance on an impermissible factor such as race; ineffective assistance in negotiating the waiver that renders it invalid; a sentence exceeding the statutory maximum; or an otherwise unlawful waiver that seriously affects the fairness, integrity, or public reputation of judicial proceedings. These requirements structured the court’s substantive analysis.
United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005)
United States v. Porter supported the proposition that ineffective-assistance claims generally belong in collateral proceedings rather than on direct appeal. Its role was procedural: the possibility that defective representation could invalidate a waiver did not mean that an undeveloped claim had to be resolved in this appeal.
The opinion should not be read as adjudicating every possible future ineffective-assistance claim or determining the enforceability of every aspect of Lerblance’s post-conviction waiver.
Hunter v. United States, 608 U.S. 713, 727–28 (2026)
Lerblance’s response invoked Hunter v. United States, which described the miscarriage-of-justice limitation as a safety valve for extreme cases implicating the justice system’s basic integrity. As quoted in the opinion, the relevant error must be obvious, egregious, and capable of undermining public confidence in the judiciary—not merely an error a judge could reasonably make.
The panel found that Lerblance identified no fact or error meeting that “high bar.” Its reliance on Hunter v. United States reinforced the exceptional nature of relief from an otherwise enforceable waiver; it did not create a general opportunity to relitigate sentencing disagreements.
McGirt v. Oklahoma, 591 U.S. 894 (2020)
McGirt v. Oklahoma appeared in counsel’s discussion of possible Indian-country jurisdictional issues. The panel found no basis for applying it to invalidate Lerblance’s conviction because his prosecution occurred in federal, not state, court.
The important distinction is between restrictions on state criminal authority in Indian country and the separate question whether a federal criminal statute reaches the conduct. The former does not itself establish the absence of federal authority.
United States v. Gachot, 512 F.3d 1252, 1254 (10th Cir. 2008)
United States v. Gachot supplied the governing general rule for the jurisdictional issue: federal criminal laws of general application apply on Indian reservations when the location of the offense is not an element of the crime.
This answered Lerblance’s contention that federal prosecution depended on whether drug distribution appeared among offenses covered by the Indian Country Crimes Act or the Major Crimes Act. Those statutes are not the exclusive means by which federal criminal law applies in Indian country.
United States v. Blue, 722 F.2d 383, 385–86 (8th Cir. 1983)
United States v. Blue supplied statute-specific support for treating § 841(a)(1) as a generally applicable federal criminal law. It connected the general principle in United States v. Gachot to the particular drug-distribution offense underlying Lerblance’s conviction.
Accordingly, the court did not need to locate the prosecution within the offense categories of §§ 1152 or 1153 to sustain federal authority over this charge.
United States v. Barquin, 799 F.2d 619, 621 (10th Cir. 1986)
United States v. Barquin identified an important qualification: tribal members are not subject to generally applicable federal criminal statutes when enforcement infringes a particular Indian right or policy.
The panel considered this limitation in addressing Lerblance’s appeal to tribal sovereignty. It found no indication that applying § 841(a)(1) infringed any particular protected right or policy. The reasoning therefore was not that tribal interests never matter, but that no applicable exception had been demonstrated.
B. The Court’s Legal Reasoning
1. Invocation of the waiver preceded enforcement
The court separated the government’s reliance on the waiver from the waiver’s substantive enforceability. These are distinct inquiries. A valid agreement does not dispense with the requirement that the government invoke it; conversely, government invocation does not establish that the agreement satisfies the enforcement test.
The government’s notice crossed the first threshold because the court read it in context. Counsel’s brief explained the waiver’s dispositive effect, and the government adopted that brief’s facts and law. The opinion does not establish that any generic endorsement will always suffice. Its express acknowledgment of a close question makes the contextual nature of the conclusion important.
2. The statutory maximum was not the Guidelines maximum
The waiver reserved appeals from sentences exceeding the statutory maximum. For this offense, the imprisonment maximum was 40 years, or 480 months. Lerblance received 84 months. His four years of supervised release also did not bring the sentence within the exception; the applicable statute required at least four years.
The advisory Guidelines range served a different function. Its upper limit of 137 months was not the statutory maximum referenced in the waiver. Indeed, the prison sentence was below the advisory range. The court thus applied the agreement’s actual exception rather than substituting a broader right to challenge sentencing decisions.
3. Contemporaneous evidence defeated an unsupported later objection
The court relied on multiple indicators of informed agreement. Lerblance initialed each page, signed the waiver section, and signed the plea agreement as a whole. At the plea hearing, government counsel described the waiver in open court. The district court questioned Lerblance about his understanding of the agreement, whether he had read it, and whether he had questions for his attorney.
The contrary material consisted of objections to the presentence report asserting that the waiver was not knowing and voluntary and that enforcement would be unjust. Those objections supplied no specific supporting facts. Counsel did not renew the concern at sentencing, when the district court reiterated its voluntariness finding and discussed Lerblance’s limited appeal rights.
The panel did not hold that signing a plea agreement makes a waiver unchallengeable. Rather, it concluded that conclusory assertions, unsupported by facts and inconsistent with the documented plea process, did not create a nonfrivolous issue in this record.
4. The miscarriage-of-justice exception remained narrow
The court independently reviewed the record under the recognized exceptions and found none applicable. The prison sentence did not exceed the statutory ceiling, and no identified circumstance established impermissible reliance, invalid negotiation of the waiver, or other qualifying unlawfulness.
The discussion of Hunter v. United States further distinguished exceptional institutional injustice from ordinary alleged error. A defendant seeking to escape a waiver must identify circumstances meeting the governing exception, not merely invoke the language of fairness.
5. Indian-country status did not displace this federal statute
Neither counsel nor Lerblance identified record evidence establishing that he was an Indian or that the offense occurred in Indian country. The court nevertheless assumed both propositions for purposes of argument. That approach isolated the legal issue: even accepting the factual premise, did federal authority fail?
It did not. Lerblance’s theory incorrectly treated the Indian Country Crimes Act and Major Crimes Act as an exhaustive list of federal criminal authority over tribal members in Indian country. Section 841(a)(1) applies generally and does not make the offense’s location an element. Nor did Lerblance identify a particular Indian right or policy infringed by enforcement. The court therefore rejected the claimed requirement of prosecution exclusively in tribal court.
C. Potential Impact
Government practice: The decision offers persuasive support for treating adoption of a waiver-centered Anders brief as invocation of the waiver. Nevertheless, an express statement seeking enforcement remains the clearer practice. The panel’s reasoning should not be converted into a rule permitting enforcement when the government has remained entirely silent.
Defense practice: Challenges to a waiver’s voluntariness require factual support. The opinion demonstrates the difficulty of overcoming a detailed plea record with a later, unexplained assertion that the defendant did not intend the agreement’s stated consequences.
Appellate review: The decision preserves the sequence of government invocation, substantive waiver review, and independent examination under Anders. Neither the agreement nor counsel’s assessment substitutes for judicial review.
Indian-country prosecutions: The opinion reinforces the distinction between jurisdiction under Indian-country-specific statutes and the reach of generally applicable federal crimes. Its reasoning may be persuasive in similar drug prosecutions, while leaving room for a demonstrated infringement of a particular Indian right or policy.
These implications remain qualified by the order’s nonprecedential status and the fact-specific nature of its conclusions.