United States v. McAllister , 487 F. App'x 472 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 5, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-1387
(D.C. No. 1:11-CR-00283-PAB-1)
ROBERT T. MCALLISTER, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, KELLY and HARTZ, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Robert T. McAllister’s plea agreement. The
defendant pleaded guilty to three counts of fraud. Pursuant to the plea agreement,
McAllister waived his right to appeal his conviction or sentence, provided the
sentence was within the statutory maximum authorized by law and did not upwardly
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
depart from the sentencing guideline range. The district court sentenced McAllister
to 78 months’ imprisonment, the low end of the guideline range. Nevertheless,
McAllister filed a notice of appeal.
The government filed its motion to enforce the plea agreement pursuant to
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
McAllister has chosen not to file a response.
We have reviewed the motion and the record, and agree that McAllister’s
proposed appeal falls within the scope of the appeal waiver, that he knowingly and
voluntarily waived his appellate rights, and that enforcing the waiver would not result
in a miscarriage of justice. See id. at 1325 (describing the factors this court considers
when determining whether to enforce a waiver of appellate rights).
Accordingly, we GRANT the motion to enforce the plea agreement and
DISMISS the appeal.
Entered for the Court
Per Curiam
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