FILED
United States Court of Appeals
Tenth Circuit
June 29, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4066
(D.C. No. 2:08-CR-00250-TS-1)
KYLE EUGENE CORNWELL, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HARTZ, Circuit Judges.
Kyle Eugene Cornwell entered a guilty plea to one count of conspiring to
attempt to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1).
His plea agreement included a waiver of his right to appeal his sentence. The
district court determined that the advisory sentencing guideline range was 84 to
105 months and imposed a sentence of 84 months, at the low end of the range.
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the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.
Mr. Cornwell has now filed an appeal seeking to challenge the calculation and
reasonableness of his sentence. The government has moved to enforce the appeal
waiver in Mr. Cornwell’s plea agreement pursuant to our decision in United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). We grant the motion
and dismiss the appeal.
In determining whether an appeal should be dismissed based on an appeal
waiver, 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. Mr. Cornwell, through counsel, concedes
that the waiver of his appeal rights was knowing and voluntary. He admits also
that his appeal falls within the express terms of his appeal waiver. Finally, he
acknowledges that “the record in this case does not disclose any reasonable basis
for finding that enforcement of the plea waiver ‘would result in a miscarriage of
justice.’” Resp. to Mot. to Enforce at 2 (quoting Hahn, 359 F.3d at 1325).
Because Mr. Cornwell has not established any of the applicable exceptions to the
enforcement of his appeal waiver, we conclude that the government’s motion to
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enforce should be granted. Accordingly, we GRANT the motion and DISMISS
the appeal.
ENTERED FOR THE COURT
PER CURIAM
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