United States v. Howard

Opinion

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

FOR THE TENTH CIRCUIT February 7, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 18-8086 v. (D.C. No. 1:18-CR-00051-SWS-3) (D. Wyo.) TIMOTHY LEE HOWARD,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, KELLY, and O’BRIEN, Circuit Judges. _________________________________

Timothy Lee Howard pleaded guilty to one count of unlawfully distributing

methamphetamine. He was sentenced to serve 100 months in prison after the district

court varied downward from the advisory Sentencing Guidelines range of 151 to 188

months. Although his plea agreement contained a waiver of his appellate rights, he

filed a notice of appeal. In his docketing statement, he indicated he wants to

challenge his sentence on appeal. The government has moved to enforce the appeal

waiver in the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315

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

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Under Hahn, we consider “(1) whether the disputed appeal falls within the

scope of the waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived his appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the

Hahn conditions have been satisfied because: (1) Mr. Howard’s appeal is within the

scope of the appeal waiver; (2) he knowingly and voluntarily waived his appellate

rights; and (3) enforcing the waiver would not result in a miscarriage of justice.

Mr. Howard responds to the government’s motion as follows: “Appellant

Timothy Lee Howard, through undersigned counsel, takes no position on the United

States’ Motion to Enforce Appeal Waiver filed by the United States of America in

this appeal.” Resp. at 1. We do not consider this an objection to the motion, and the

reasoning in the government’s motion is sound. Accordingly, we grant the

government’s motion to enforce the appeal waiver and dismiss the appeal.

Entered for the Court Per Curiam