United States v. Kristich

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 4, 2022
• Docket: 21-2126
• Status: Unpublished

Opinion

Appellate Case: 21-2126 Document: 010110627029 Date Filed: 01/04/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 4, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2126 (D.C. No. 1:18-CR-02635-WJ-1) ORIN KRISTICH, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, EID and CARSON, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver in Orin Kristich’s plea agreement pursuant to United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Exercising jurisdiction under

28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

Kristich pleaded guilty to coercion and enticement, in violation of 18 U.S.C.

§ 2422(a). Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties stipulated that a

sentence between five to twelve years’ imprisonment would be appropriate. As part

of the plea agreement, Kristich waived his right to appeal his conviction and any

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-2126 Document: 010110627029 Date Filed: 01/04/2022 Page: 2

sentence within the stipulated range. Both by signing the written plea agreement and

in his responses to the court’s questions at the change of plea hearing, Kristich

acknowledged that he was entering his plea knowingly and voluntarily and that he

understood its consequences, including the possible sentences and appeal waiver.

The court accepted the plea, including the parties’ sentencing agreement, and

sentenced Kristich to 120 months in prison. Despite receiving a sentence within the

stipulated range, he filed a notice of appeal.

In ruling on a motion to enforce, we consider whether the appeal falls within

the scope of the waiver, whether the waiver was knowing and voluntary, and whether

enforcing it would result in a miscarriage of justice. Hahn, 359 F.3d at 1325.

In response to the government’s motion to enforce, Kristich, through counsel,

acknowledged that his appeal waiver is enforceable under the standards set out in

Hahn. Accordingly, we grant the government’s motion to enforce the appeal waiver

and dismiss the appeal. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir.

2005) (noting that court need not address uncontested Hahn factor).

Entered for the Court Per Curiam