FILED
UNITED STATES COURT OF APPEALS United States Court of Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________ May 3, 2019
Elisabeth A. Shumaker
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v. No. 18-4175
(D.C. No. 2:17-CR-00606-TS-1)
RANDY CHEEK, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BACHARACH, and CARSON, Circuit Judges.
_________________________________
Randy Cheek pleaded guilty to possession of methamphetamine with intent to
distribute and being a felon in possession of a firearm and ammunition. He was
sentenced to serve 96 months in prison after the district court varied downward from
the advisory Sentencing Guidelines range of 108 to 135 months. Although his plea
agreement contained a waiver of his appellate rights, he filed a notice of 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This order and judgment is not binding precedent, except under the doctrines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.
In his response, Mr. Cheek states that he “does not dispute that his plea, along
with his waiver of appeal rights, was knowingly and voluntarily entered.” Resp. at 1.
He also states that his “appeal falls within the terms of the appeal waiver he accepted
in exchange for the United States’ promises in the plea agreement.” Id. Finally, he
states that “the record in this case does not disclose any reasonable basis for asserting
that enforcement of the plea waiver would result in a miscarriage of justice under the
applicable standard.” Id. (internal quotation marks omitted).
Because Mr. Cheek concedes that his appeal is within the scope of the waiver,
his waiver was knowing and voluntary, and enforcing the waiver would not result in
a miscarriage of justice, we grant the government’s motion to enforce the appeal
waiver and dismiss the appeal.
Entered for the Court
Per Curiam
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