United States v. Sestak

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 19, 2020
• Docket: 19-8062
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT February 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-8062 (D.C. No. 2:19-CR-00099-SWS-1) JEREMY LEE SESTAK, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

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

appeal waiver in Jeremy Lee Sestak’s plea agreement. Exercising jurisdiction under

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

Mr. Sestak pleaded guilty to one count of distribution and attempted

distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and

one count of possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B). He was sentenced to serve 180 months in prison.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Although his plea agreement contained a waiver of his appellate rights,

Mr. Sestak filed a notice of appeal. The government moved to enforce the appeal

waiver pursuant to United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en

banc) (per curiam).

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 Mr. Sestak’s appeal is within the

scope of the appeal waiver, he knowingly and voluntarily waived his appellate rights,

and enforcing the waiver would not result in a miscarriage of justice.

In response to the government’s motion, Mr. Sestak, through counsel,

concedes his appeal waiver is enforceable under the standard set forth in Hahn.

Based on this concession and our independent review of the record, 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 factors).

Entered for the Court Per Curiam