United States v. Colbert: McGirt Does Not Undermine Federal § 3231/MCA Jurisdiction; Failure to Object to an R&R Waives Suppression Appellate Review

Introduction

In United States v. Colbert (10th Cir. May 12, 2026) (Order and Judgment), the Tenth Circuit dismissed Antonio Jerome Colbert’s criminal appeal after appointed counsel filed an Anders brief asserting there were no non-frivolous appellate issues. A jury had convicted Mr. Colbert of:

  • felon in possession of a firearm, 18 U.S.C. § 922(g)(1);
  • assault with a dangerous weapon with intent to do bodily harm in Indian country, 18 U.S.C. § 113(a)(3);
  • use of a firearm in connection with a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii).

The appeal raised (through counsel and pro se filings) issues concerning federal subject-matter jurisdiction in light of McGirt v. Oklahoma, the denial of a suppression motion, sufficiency of the evidence, and sentencing reasonableness. The panel concluded that each potential issue was “wholly frivolous” and dismissed the appeal while granting counsel’s motion to withdraw.

Although designated as nonprecedential, the decision is a useful consolidation of recurring procedural and jurisdictional points in federal criminal appeals—particularly in Indian country prosecutions and Anders dispositions.

Summary of the Opinion

The Tenth Circuit conducted an independent review of the record under Anders v. California and held:

  1. Jurisdiction: The district court had subject-matter jurisdiction over “all offenses against the laws of the United States” under 18 U.S.C. § 3231. The Major Crimes Act (18 U.S.C. § 1153) did not undermine that jurisdiction; rather, it supported exclusive federal jurisdiction over the Indian-country assault charge. McGirt v. Oklahoma did not alter federal criminal jurisdiction.
  2. Suppression: Appellate review of the suppression ruling was waived because Mr. Colbert did not object to the magistrate judge’s report and recommendation; under the Tenth Circuit’s firm waiver rule, this bars review of both factual and legal questions.
  3. Sufficiency: The evidence—officer testimony, an eyewitness account, and Mr. Colbert’s felon-status stipulation—was sufficient for a reasonable jury to find guilt beyond a reasonable doubt on all counts.
  4. Sentencing: The sentence was procedurally and substantively reasonable. The Guidelines were properly calculated, the court considered 18 U.S.C. § 3553(a), and the within-Guidelines sentence was presumptively reasonable.

Accordingly, the court granted counsel’s withdrawal motion, granted the defendant’s motion to supplement his pro se response, and dismissed the appeal.

Analysis

Precedents Cited

1) Anders v. California

The decision follows the Anders v. California framework: when appointed counsel concludes an appeal lacks non-frivolous issues, counsel may so advise the court and seek withdrawal, but the appellate court must conduct “a full examination of all the proceedings.” The panel explicitly invoked this duty and then independently confirmed there was no arguable appellate merit before dismissing.

2) Hall v. Bellmon

The court cited Hall v. Bellmon for the proposition that pro se submissions are liberally construed. This ensured Mr. Colbert’s jurisdictional, suppression, sufficiency, and sentencing contentions were considered in their strongest plausible form—important in an Anders posture where the court must satisfy itself that nothing non-frivolous is missed.

3) McGirt v. Oklahoma and United States v. Wheeler

Mr. Colbert argued the district court lacked subject-matter jurisdiction, invoking McGirt v. Oklahoma and the Major Crimes Act (18 U.S.C. § 1153). The panel rejected this, emphasizing McGirt’s role in constraining state jurisdiction, not federal jurisdiction. It reinforced that distinction by quoting McGirt’s observation that the MCA is a congressional choice that places certain major-crime prosecutions in federal hands rather than state hands.

The court further anchored federal jurisdiction with United States v. Wheeler, citing the proposition that federal jurisdiction extends to crimes over which there is federal jurisdiction “regardless of whether an Indian is involved.” The combined use of McGirt and Wheeler underscores that “reservation status” arguments typically affect which sovereign may prosecute (state vs. federal/tribal), not whether a federal court possesses the statutory authority to hear federal offenses.

4) Joslin v. Sec'y of Dep't of Treasury

The panel cited Joslin v. Sec'y of Dep't of Treasury to confirm that a subject-matter jurisdiction challenge can be raised for the first time on appeal. That doctrinal opening mattered here because it removed any procedural barrier to considering Mr. Colbert’s McGirt-based jurisdiction claim—yet the court still found the claim frivolous on the merits.

5) Moore v. United States

The suppression issue turned not on Fourth Amendment merits but on procedure. Under Moore v. United States, the Tenth Circuit’s “firm waiver rule” provides that failing to object to a magistrate judge’s report and recommendation waives appellate review of both factual and legal questions. The court treated Mr. Colbert’s failure to object as dispositive, rendering any suppression-based appellate claim frivolous regardless of the underlying search arguments.

6) United States v. Sells and United States v. Summers

On sufficiency review, the court relied on the restrictive standards described in United States v. Sells and United States v. Summers. Those cases emphasize de novo review in name, but substantial deference in application: appellate courts ask only whether a reasonable jury could find guilt beyond a reasonable doubt when viewing the evidence in the light most favorable to the government and drawing reasonable inferences in its favor.

7) Gall v. United States and United States v. Blair

For sentencing, the panel applied Gall v. United States to distinguish procedural from substantive error and to list hallmark procedural errors (miscalculating the Guidelines, treating them as mandatory, failing to consider § 3553(a), etc.). It then cited United States v. Blair both for abuse-of-discretion substantive review and for the presumption of reasonableness attached to a within-Guidelines sentence.

Legal Reasoning

A) Federal subject-matter jurisdiction after McGirt

The court treated the jurisdiction question as straightforward: 18 U.S.C. § 3231 grants federal district courts original jurisdiction over “all offenses against the laws of the United States.” Each count of conviction was a federal offense, so § 3231 supplied jurisdiction.

Importantly, the panel explained that the Major Crimes Act does not restrict § 3231 jurisdiction; in this context it confirms that certain enumerated offenses committed by an Indian in Indian country (including a “felony assault under section 113”) fall within the “exclusive jurisdiction of the United States.” Thus, even accepting McGirt’s reservation-recognition logic, the consequence is displacement of state authority—not displacement of federal authority.

B) Suppression: procedural forfeiture via the firm waiver rule

The panel declined to engage the search’s constitutionality because Mr. Colbert did not object to the magistrate judge’s report and recommendation. Under the firm waiver rule, that omission waived appellate review of the suppression ruling “of both factual and legal questions.” In the Anders posture, that procedural bar made the suppression issue not merely weak but frivolous as an appellate claim.

C) Sufficiency: deference to the jury’s verdict

The court identified trial evidence supporting each element: police discovery of the Glock pistol, eyewitness testimony describing Mr. Colbert’s use of the firearm, and the stipulation establishing felon status for § 922(g)(1). Applying the “light most favorable to the government” framing, it found no plausible sufficiency challenge.

D) Sentencing: no procedural error; within-Guidelines presumption

The court’s sentencing analysis proceeded in two steps. First, it found no significant procedural error: the Guidelines were correctly calculated; the district court recognized the Guidelines were advisory; and it explained the sentence with reference to § 3553(a) factors. Second, it applied the within-Guidelines presumption of reasonableness and found no record basis to rebut it.

Notably, the panel addressed the only identified Guidelines dispute: a two-level obstruction-of-justice enhancement based on jailhouse calls encouraging the victim to have other witnesses recant. The court deemed it reasonable to overrule the objection because attempts to dissuade truthful testimony qualify as obstructive even absent intimidation.

Impact

As an “Order and Judgment” designated nonprecedential, United States v. Colbert is not binding except under law-of-the-case, res judicata, and collateral estoppel doctrines. Even so, it has practical persuasive impact in four recurring areas:

  • McGirt-based jurisdiction arguments: It reinforces the now-familiar boundary: McGirt primarily reallocates sovereign prosecutorial authority away from states in certain Indian country contexts; it does not deprive federal courts of § 3231 jurisdiction over federal crimes and may affirm federal exclusivity under the MCA for enumerated major crimes.
  • Magistrate R&R practice: It highlights the severe appellate consequences of failing to object to an R&R—especially on suppression issues where defendants may assume the merits can be revisited later.
  • Anders rigor: It illustrates the appellate court’s independent screening function and the type of record-based checks (jurisdiction, waiver, sufficiency standards, sentencing framework) that commonly determine whether any non-frivolous issue exists.
  • Within-Guidelines sentencing: It exemplifies how the presumption of reasonableness and the Gall framework combine to make many sentencing appeals difficult absent a clear procedural misstep or a strong substantive disproportionality argument.

Complex Concepts Simplified

Anders brief
A filing by appointed counsel stating the appeal has no non-frivolous issues; the court must then independently review the record before allowing counsel to withdraw and dismissing or otherwise resolving the appeal.
Subject-matter jurisdiction (18 U.S.C. § 3231)
The federal court’s authority to hear federal criminal offenses. If the charged crimes are federal statutes, § 3231 generally supplies jurisdiction.
Major Crimes Act (18 U.S.C. § 1153)
A statute assigning federal (often exclusive) jurisdiction over certain listed “major crimes” when committed by an Indian in Indian country, including specified assaults under § 113.
McGirt v. Oklahoma
A Supreme Court decision recognizing that (in McGirt) Congress had not disestablished the Creek Reservation, limiting Oklahoma’s ability to prosecute certain crimes there; it does not eliminate federal jurisdiction over federal crimes.
Firm waiver rule
In the Tenth Circuit, if a party does not timely object to a magistrate judge’s report and recommendation, the party generally loses the right to appellate review of the issues addressed in that report.
Sufficiency of the evidence
A claim that the trial evidence could not allow a reasonable jury to find guilt beyond a reasonable doubt. Appellate courts view evidence in the government’s favor and draw reasonable inferences supporting the verdict.
Procedural vs. substantive reasonableness (Gall)
Procedural errors involve the method (Guidelines calculation, considering § 3553(a), explaining the sentence). Substantive reasonableness asks whether the length of the sentence is reasonable given the totality of circumstances, reviewed deferentially for abuse of discretion.
Within-Guidelines presumption (Blair)
A sentence inside the correctly calculated advisory Guidelines range is presumed reasonable on appeal, making it harder for the defendant to show the sentence is substantively unreasonable.

Conclusion

United States v. Colbert provides a compact but instructive application of the Anders framework: (1) federal jurisdiction remains secure under 18 U.S.C. § 3231 notwithstanding McGirt, and the Major Crimes Act can affirm federal exclusivity for enumerated Indian-country offenses; (2) failure to object to a magistrate judge’s suppression R&R triggers the Tenth Circuit’s firm waiver rule; (3) sufficiency claims face a highly deferential lens toward the jury’s verdict; and (4) a properly calculated within-Guidelines sentence is difficult to overturn absent clear procedural missteps or an unusually compelling showing of substantive excess.