FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 30, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3171
(D.C. No. 2:04-CR-20089-KHV-1)
MONTGOMERY CARL AKERS, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, BACHARACH, and PHILLIPS, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Montgomery Carl Akers’ plea agreement.
Akers argues that the government’s motion is untimely and fails to comply with the
court’s rules. We grant the government’s motion and dismiss the appeal.
Akers first contends that the government’s motion to enforce his appeal waiver
is untimely. A motion to enforce “must be filed within 20 days after: (i) the district
*
This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
court’s notice, pursuant to 10th Cir. R. 11.1, that the record is complete, or; (ii) the
district court’s notice that it is transmitting the record pursuant to 10th Cir. R. 11.2.”
10th Cir. R. 27.3(A)(3)(b). The district court noticed its transmission of the record
on June 23, 2016. The government filed its motion to enforce on July 13, 2016. The
government’s motion is timely.
Akers also maintains that the government’s motion lacks a certificate of
service. But the motion states that it “was electronically filed on July 13, 2016, with
the Clerk of the Court by using the ECF system, which will send a copy of the Notice
of Docket Activity to all ECF system participants as of the time of the filing, and a
copy was sent via U.S. Mail to: Mr. Montgomery C. Akers.” Mot. to Enforce at 14.
Finally, Akers contends that the government’s motion should be denied based
on its failure to comply with this court’s rules. A motion to enforce “must include
copies of the plea agreement and copies of transcripts for both the plea hearing and
the sentencing hearing.” 10th Cir. R. 27.3(A)(2)(b). Akers notes that the
government filed with its motion the transcript from the final sentencing hearing held
on November 20, 2006, but did not attach the transcripts from the previous
sentencing proceedings held on July 18 and July 20, 2006.
Akers asserts that these two additional sentencing transcripts are “crucial to his
arguments to deny the government’s motion to enforce.” Resp. at 5. But he does not
indicate what his arguments are or why they require citation to any sentencing
transcript other than the transcript from the hearing in which the district court
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imposed his sentence. As we have previously noted, “Mr. Akers is no stranger to this
court,” United States v. Akers, 377 F. App’x 834, 835 (10th Cir. 2010), nor is he
unfamiliar with the available bases for challenging the enforcement of his appeal
waiver, see United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(per curiam). Akers has opposed the government’s motions to enforce his appeal
waiver on at least five previous occasions. See United States v. Akers, 628 F. App’x
560, 562-63 (10th Cir. 2015); United States v. Akers, Nos. 12-3123 & 12-3130, slip
op. at 3-4 (10th Cir. Aug. 20, 2012); Akers, 377 F. App’x 834, 836-37 (10th Cir.
2010); United States v. Akers, 317 F. App’x 798, 801-04 (10th Cir. 2009); United
States v. Akers, 281 F. App’x 844, 845 (10th Cir. 2008). Akers’ conclusory assertion
fails to demonstrate that he has suffered any prejudice from the government’s failure
to file the entire sentencing-hearing transcript. Consequently, he has provided
insufficient grounds for this court to deny the government’s motion for failure to
comply with the court’s rules.
Akers advances no other argument against enforcement of his appeal waiver.
We therefore grant the government’s motion to enforce and dismiss the appeal. We
deny Akers’ application to proceed on appeal without prepayment of fees and costs.
Akers shall forthwith pay the full amount of the filing fee to the district court clerk.
All other pending motions are dismissed as moot.
Entered for the Court
Per Curiam
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United States v. Akers
Combined Opinion