United States v. Herring

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 1, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-4016 (D.C. No. 2:15-CR-00743-TS-1) LAWRENCE PAUL HERRING, (D. Utah)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, McHUGH, and EID, Circuit Judges. _________________________________

Lawrence Paul Herring pleaded guilty to possessing child pornography. The

district court imposed a prison term below the advisory Sentencing Guidelines range.

Although Mr. Herring’s plea agreement included a broad waiver of his appellate

rights, he has filed a notice of appeal. The government moves to enforce the appeal

waiver and dismiss this appeal under United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam).

We will enforce an appeal waiver if (1) “the disputed appeal falls within”

the waiver’s scope; (2) “the defendant knowingly and voluntarily waived his

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 rights”; and (3) enforcing the waiver would not “result in a miscarriage of

justice.” Id. at 1325. The government argues that all three of these circumstances

exist in this case.

Mr. Herring’s counsel has responded, stating that she “is unaware of any basis

to oppose” the government’s motion. Aplt. Resp. at 1. We need not address a Hahn

prong that a defendant does not dispute. See United States v. Porter, 405 F.3d 1136,

1143 (2005). Because Mr. Herring does not dispute any of the Hahn prongs, we

enforce his appeal waiver and dismiss this appeal.

Entered for the Court Per Curiam