United States v. Larsen ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 30, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-4003
(D.C. No. 1:15-CR-00101-TS-1)
BRIAN DALE LARSEN, (D. Utah)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BACHARACH, and PHILLIPS, Circuit Judges.
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After entering into a plea agreement that included an appeal waiver, Brian
Dale Larsen pleaded guilty to possession of methamphetamine with intent to
distribute. As part of the plea agreement, the government agreed to: (1) dismiss
three other counts of the indictment; (2) not to file a sentence enhancement; and
(3) recommend at sentencing a term of incarceration within the Sentencing
Guidelines (Guidelines) range determined by the district court. For his part, Larsen
acknowledged that the statutory mandatory minimum for the possession charge was
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
ten years and the maximum term was life imprisonment. He further acknowledged
that the final calculation of his sentence made by the court might be different from
other calculations made by himself or others, but nonetheless agreed to waive his
right to appeal the sentence except where the sentence was above the mandatory
maximum penalty or above the high end of the Guidelines range as determined by the
court.
The Presentence Investigation Report calculated a Guidelines sentence range
of 188 to 235 months, which the district court accepted. At sentencing, Larsen
argued that his criminal history was overrepresented and requested the ten year
mandatory minimum. The court denied the request citing Larsen’s criminal history
and weapons charges that were dismissed by the government, and sentenced him to
188 month’s imprisonment—the low end of the Guidelines range and below the
statutory maximum of life imprisonment.
Despite the waiver, Larsen has filed a notice of appeal to challenge “[w]hether
the Sentencing Guidelines were properly calculated, and . . . [w]hether the sentence
was reasonable.” Dktg. Stmt. at 4. The government has moved to enforce the appeal
waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)
(per curiam).
In response to the motion to enforce, Larsen’s counsel says that there is no
reason to deny the government’s motion. This court gave Larsen an opportunity to
file a pro se response to the motion to enforce. There has been no response.
2
We have reviewed the motion to enforce and the record and conclude that
Larsen’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 to
consider when determining whether to enforce an appellate waiver).
We grant the motion to enforce the appeal waiver and dismiss the appeal.
Entered for the Court
Per Curiam
3