United States v. Stang, No. 22-4125 (10th Cir. 2023)
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Appellate Case: 22-4125 Document: 010110952897 Date Filed: 11/15/2023 UNITED STATES COURT OF APPEALS Page: 1 FILED United States Court of Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, November 15, 2023 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. JOE DEE STANG, No. 22-4125 (D.C. No. 2:10-CR-00712-TS-1) (D. Utah) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HOLMES, Chief Judge, HARTZ, and MORITZ, Circuit Judges. _________________________________ Joe Dee Stang filed a pro se motion to vacate his guilty plea. He argued the government breached his plea agreement by violating the repayment schedule for his restitution obligation. The district court denied the motion, and Mr. Stang now appeals. The question before us is whether Mr. Stang may move to have his guilty plea vacated after he was sentenced. The answer is no, because a district court may not set aside a guilty plea after a defendant has been sentenced, except After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-4125 Document: 010110952897 Date Filed: 11/15/2023 Page: 2 as a consequence of a direct appeal or through a collateral proceeding. See Fed. R. Crim. P. 11(e) (“After the court imposes sentence, the defendant may not withdraw a plea of guilty . . . , and the plea may be set aside only on direct appeal or collateral attack.” (emphasis added)). Mr. Stang was sentenced in 2012 and he did not file his motion to vacate his guilty plea until 2022. This is not a direct appeal from Mr. Stang’s convictions or sentence, and he objects to the government’s argument that his motion to vacate his guilty plea should be construed as a 28 U.S.C. § 2255 motion. See Supp. Reply Br. at 4 (“The government’s suggestion that this court construe the motion as a § 2255 motion . . . violates Supreme Court precedent.”); id. (“Mr. Stang’s motion . . . should not be construed as a § 2255 motion.”). Because Rule 11(e) mandates that a guilty plea may only be set aside after sentencing on direct appeal or in a collateral proceeding, the district court lacked jurisdiction to consider Mr. Stang’s motion to vacate his guilty plea. See United States v. Spaulding, 802 F.3d 1110, 1127 (10th Cir. 2015) (holding that the limitations in Rule 11(e) are jurisdictional). Accordingly, we remand to the district court with directions to vacate its denial order and enter an order dismissing Mr. Stang’s motion to vacate his guilty plea for lack of jurisdiction. We grant Mr. Stang’s motion for leave to proceed on appeal without prepayment of costs or fees. Entered for the Court Jerome A. Holmes Chief Judge 2
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