Rule 11 Adequacy When Defendant Is Off Medication and the Substantive Reasonableness of a Modest Upward Variance: The Tenth Circuit’s Anders Dismissal in United States v. Bertschy

Introduction

In United States v. Bertschy, No. 24-6173 (10th Cir. July 14, 2025), a Tenth Circuit panel (Judges Bacharach, Moritz, and Rossman) dismissed an appeal as wholly frivolous under Anders v. California and granted defense counsel’s motion to withdraw. The appeal challenged convictions for three counts of being a felon in possession of a firearm and a 120-month sentence imposed after a slight upward variance from the advisory Guidelines range of 92–115 months.

The decision—issued as a nonprecedential Order and Judgment—does not create binding law but offers persuasive guidance on three recurring issues:

How appellate courts conduct Anders review and the obligations of counsel, the defendant, and the court;
What suffices for a knowing and voluntary guilty plea under Rule 11 when a defendant is off prescribed medication but denies impairment;
When a modest upward variance (here, five months) to the statutory maximum is substantively reasonable given aggravated facts.

The underlying facts involved multiple law-enforcement encounters over 2019–2020, including fleeing at high speed, resisting arrest, possession of multiple firearms (loaded and otherwise), drugs, domestic-violence conduct, and possession of a stolen vehicle. After a competency finding based on forensic evaluation and an unconditional guilty plea, the district court varied upward to 120 months on each count (concurrent) and imposed three years of supervised release.

Summary of the Opinion

Applying Anders, the panel independently reviewed the record. The defendant did not submit a pro se response (despite an extension), and the government declined to brief. The court concluded there was no nonfrivolous basis to challenge:

Convictions: The Rule 11 colloquy was adequate; the plea was knowing and voluntary. The court specifically addressed the fact that the defendant was off prescribed medications at the plea hearing, obtained assurances of clarity, invited real-time reporting of any impairment, and confirmed an ample factual basis for each count.
Sentence: No procedural error occurred; the court correctly calculated the Guidelines (including accepting a six-level reduction for lack of evidence that any firearm could accept a large-capacity magazine), considered 18 U.S.C. § 3553(a) factors, relied on no clearly erroneous facts, and sufficiently explained the sentence. Substantively, a five-month upward variance to 120 months was within the “bounds of permissible choice” given repeated dangerous conduct, domestic violence, and persistent recidivism while on bond.

The panel dismissed the appeal and granted counsel’s motion to withdraw.

Case Background

January 2019: High-speed flight (>100 mph), crash, flight on foot; seven firearms in trunk; drugs, cash, loose gemstones recovered.
February 2020: Traffic stop; pat-down due to nervousness; heroin in pocket; firearm in waistband; resistance during arrest.
May 2020: Domestic-violence call; later arrest attempt led to flight, ignoring commands, reaching toward pocket, resistance; loaded firearm in pocket recovered; truck in his possession was stolen; ammunition in the truck. Additional investigative leads tied to prior noncharged incidents (guns found in April 2019; a firearm connected to a July 2019 assault investigation; firearms-related items in an RV and a storage locker).
Indictment: November 2020; three felon-in-possession counts.
Competency: January 2022 finding of competency based on forensic evaluation.
Plea: February 2022 guilty pleas to all counts, without a plea agreement.
Guidelines: PSR: offense level 29; Criminal History Category VI (151–188 months). The parties agreed the offense level should be six levels lower because there was no evidence any firearm could accept a large-capacity magazine; the court accepted and recalculated to 92–115 months.
Sentencing: Defense sought 64 months (national average); the government sought 120 months; the court imposed 120 months (a five-month upward variance from the top of the range) and three years’ supervised release, concurrent on each count.
Appeal posture: Judgment was re-entered after a 28 U.S.C. § 2255 proceeding based on counsel’s failure to file a notice of appeal upon request; appeal restored; counsel filed an Anders brief; defendant did not respond; government did not brief.

Analysis

Precedents and Authorities Cited

Anders v. California, 386 U.S. 738 (1967): Establishes the framework for counsel to withdraw if, after a conscientious review, the appeal appears wholly frivolous. Counsel must file a brief referring to anything in the record that might arguably support the appeal; the defendant must have an opportunity to respond; and the court must independently review the record.
United States v. Calderon, 428 F.3d 928 (10th Cir. 2005): Tenth Circuit application of Anders—requiring the court to conduct a full independent examination of the record.
Fed. R. Crim. P. 11(b): Governs plea colloquies—ensuring the plea is knowing and voluntary, that the defendant understands rights and consequences, and that there is a factual basis.
United States v. Muhammad, 747 F.3d 1234 (10th Cir. 2014): Reinforces the requirement that a guilty plea be knowing and voluntary.
Brady v. United States, 397 U.S. 742 (1970): Classic statement that a plea is voluntary if the defendant is aware of its direct consequences and is neither coerced nor promised improper inducements.
United States v. McIntosh, 29 F.4th 648 (10th Cir. 2022): When a defendant reports not taking medication and specifically indicates impaired judgment, the district court must ask follow-up questions to ensure competency and voluntariness. The panel here used McIntosh as a counterpoint: the defendant denied impairment and the court still followed up, meeting Rule 11 requirements.
United States v. Carillo, 860 F.3d 1293 (10th Cir. 2017): Clarifies plain-error review for unpreserved plea challenges and explains how courts compare admitted conduct to offense elements to confirm a factual basis.
United States v. Vidal, 561 F.3d 1113 (10th Cir. 2009): Also addresses plain-error standards in the plea context when no objection was made below.
United States v. Patton, 927 F.3d 1087 (10th Cir. 2019), and United States v. Lucero, 747 F.3d 1242 (10th Cir. 2014): Set out procedural reasonableness review, including correct Guidelines calculation, consideration of § 3553(a) factors, reliance on accurate facts, and adequate explanation.
United States v. Ortiz-Lazaro, 884 F.3d 1259 (10th Cir. 2018), United States v. Steele, 603 F.3d 803 (10th Cir. 2010), United States v. Chavez, 723 F.3d 1226 (10th Cir. 2013), and United States v. McComb, 519 F.3d 1049 (10th Cir. 2007): Define substantive reasonableness and the deferential “bounds of permissible choice” standard under abuse of discretion.
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G): Authorize decision without oral argument where it would not materially assist.
Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A): Permit citation of nonprecedential decisions for persuasive value.
28 U.S.C. § 2255: Post-conviction relief vehicle used here to restore appellate rights when counsel failed to file a notice of appeal upon request.

Legal Reasoning

1) Anders Framework and Independent Review

The panel adhered to Anders: defense counsel identified potentially arguable issues, served the brief, and moved to withdraw; the defendant had extended time yet chose not to respond; the government declined to brief. The court then independently reviewed the entire record and confirmed the appeal was wholly frivolous. This procedural posture matters: when both the defendant and the government remain silent after an Anders brief, the court’s independent duty serves as the backstop to ensure no arguable claims are overlooked.

2) Validity of the Guilty Plea (Plain-Error Review)

Because the defendant did not move to withdraw his plea or challenge its validity below, any appellate attack proceeds under plain-error review. The panel found no error—plain or otherwise—in three respects:

Competency and medication: The plea hearing expressly addressed the fact that the defendant was not taking prescribed medications. He told the court he could think clearly and understood the proceedings. The judge instructed him to alert the court if that changed. Defense counsel twice affirmed a belief in competency, having previously secured a formal competency finding based on a forensic evaluation. Unlike McIntosh, where the absence of medication coupled with claimed impairment required probing, here the defendant denied impairment, and the court’s follow-up was adequate.
Knowing and voluntary plea: The defendant affirmed voluntariness and the absence of coercion or promises, and counsel verified that the defendant understood the charges, the punishment ranges, and the rights forfeited by pleading guilty.
Rule 11 advisements and factual basis: The district court completed the Rule 11(b) colloquy; the government elicited the elements of the three felon-in-possession offenses and obtained the defendant’s acknowledgments. The court compared the admitted conduct to the elements, satisfying the factual-basis requirement.

3) Procedural Reasonableness of the Sentence

The court found no procedural defect. The district judge:

Correctly calculated the Guidelines: The court accepted the parties’ agreement to reduce the offense level by six levels because the record did not support the presence of a semiautomatic firearm capable of accepting a large-capacity magazine, resulting in an advisory range of 92–115 months (CHC VI).
Considered § 3553(a) factors and explained the variance: The court weighed the defendant’s difficult upbringing and mental-health challenges but found the nature and circumstances—multiple armed encounters, domestic violence, flight, resistance, stolen property, and repeated offending while on bond—were “far more egregious than” a typical felon-in-possession case. It emphasized his “lengthy and alarming” criminal history and recidivism.
Relied on nonclearly erroneous facts: The court summarized the record, including PSR facts. Defense objections to some PSR recitals were cursory, and counsel conceded they did not affect the Guidelines calculation. Under settled practice, uncontroverted PSR facts may be relied upon; the panel identified no factual misstep.

4) Substantive Reasonableness of the Sentence

The five-month upward variance (from 115 to 120 months) was reviewed for abuse of discretion. The panel concluded the sentence fell within the “bounds of permissible choice,” noting:

The repeated and dangerous nature of the firearm possession incidents, including high-speed flight, resistance, reaching toward a pocket during arrest, domestic violence, and possession of a stolen vehicle;
The defendant’s persistent criminal conduct even after bonding out on multiple occasions;
The district court’s explicit balancing of mitigation (childhood trauma, mental health) against public-safety concerns and recidivism risks;
The court’s observation—underscoring the gravity of the conduct—that it was surprised the government had not sought more than 120 months.

In short, the modest upward variance to the statutory maximum was supported by the record and a reasoned application of § 3553(a), and thus not substantively unreasonable.

Impact and Practical Significance

Although nonprecedential, Bertschy is likely to be cited for persuasive value on several fronts:

Rule 11 when a defendant is off medication: The opinion reinforces that the key inquiry is whether the defendant is mentally clear and understands the proceedings at the time of the plea, not the mere fact of being off prescribed medication. Targeted follow-up questions and on-the-record assurances—especially against the backdrop of a prior competency finding—will generally suffice absent indicia of impairment.
Anders practice: The case demonstrates the court’s willingness to dismiss as frivolous where counsel has conscientiously canvassed the record, the defendant declines to identify any issues pro se, and the court’s independent review uncovers no arguable errors. It underscores counsel’s duty to flag any potential issues and the court’s ultimate duty to confirm frivolity.
Use of uncharged conduct at sentencing: While the panel did not dwell on the point, the district court’s reliance on PSR-reported conduct (domestic violence, additional firearms-related findings) illustrates the enduring principle that sentencing courts may consider uncharged conduct supported by sufficiently reliable information—especially where objections are cursory or immaterial to Guidelines calculations.
Upward variances to the statutory maximum: A small upward variance anchored in well-articulated § 3553(a) rationales, particularly involving repeated dangerous conduct with firearms and recidivism on bond, is likely to withstand substantive reasonableness review.
Guidelines precision: The six-level reduction for lack of large-capacity-magazine capability shows the importance of evidentiary precision in firearms cases. Parties’ joint corrections, when accepted and explained by the court, promote accurate advisory ranges and more defensible sentences on appeal.
Preservation matters: Challenges not raised below (e.g., to plea validity or to specific PSR facts) face the high hurdle of plain-error review. Specific, supported objections at sentencing are critical to both procedural and substantive reasonableness arguments on appeal.

Complex Concepts Simplified

Anders brief: A special brief counsel may file when, after thoroughly reviewing the record, counsel believes the appeal has no arguable merit. It identifies potential issues, serves the client, and asks the court to independently confirm frivolity before allowing counsel to withdraw.
Plain-error review: When a defendant did not raise an issue in the district court, the appellate court asks whether there was (1) error, (2) that is plain (clear/obvious), (3) affecting substantial rights (typically outcome-determinative), and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
Rule 11 colloquy: The judge’s required in-court discussion with the defendant before accepting a guilty plea. It confirms the defendant understands the charges, rights, and consequences, is pleading voluntarily, and that there is a factual basis supporting guilt.
Procedural vs. substantive reasonableness: Procedural concerns include correct Guidelines calculation, consideration of § 3553(a) factors, accurate facts, and sufficient explanation. Substantive reasonableness asks whether the sentence length is within a range of reasonable outcomes given the facts and law.
Variance vs. departure: A departure adjusts the Guidelines range under the Guidelines’ own rules; a variance selects a sentence outside the advisory range based on 18 U.S.C. § 3553(a) factors.
Large-capacity magazine capability (Guidelines context): Certain Guidelines provisions increase offense levels if an offense involves a semiautomatic firearm capable of accepting a large-capacity magazine. Absent evidence of that capability, the enhancement or higher base offense level should not apply.
Nonprecedential Order and Judgment: Not binding except under doctrines like law of the case, res judicata, or collateral estoppel. Under FRAP 32.1, however, such decisions may be cited for persuasive value.

Conclusion

United States v. Bertschy offers a clear, practical roadmap for three recurring appellate issues. First, it reaffirms that an Anders dismissal will follow when counsel and the court fulfill their respective duties, and the record reveals no arguable issues. Second, it clarifies that a Rule 11 plea taken while a defendant is off prescribed medication is not infirm where the court probes contemporaneous clarity, the defendant denies impairment, and the record reflects competency and understanding. Third, it confirms that a modest upward variance—here, to the 120-month statutory maximum—can be substantively reasonable when the record demonstrates repeated, dangerous firearms conduct, domestic violence, flight, resistance, and recidivism while on bond, all explicitly weighed against mitigating personal history.

Though nonprecedential, the opinion is a useful, persuasive guide for district judges conducting plea colloquies amid medication concerns, for practitioners assessing the viability of appellate claims under Anders, and for sentencing litigants calibrating arguments about variances, PSR objections, and the evidentiary underpinnings of § 3553(a) analyses.