United States v. Armour ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 31, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-3101
(D.C. No. 05-CR-10187-M LB)
JAM ES M . ARM OUR, (D . Kan.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, L UC ER O, and TYM KOVICH, Circuit Judges.
The government has filed a motion to enforce the plea agreement with
defendant James M . Armour. In the agreement, M r. Armour w aived his right to
appeal his conviction and sentence on the charge of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). M r. Armour’s attorney
responded that he filed a notice of appeal to protect his client’s interests pursuant
*
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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to United States v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005) (holding
counsel must file a notice of appeal if client requests him to do so, even if client
has waived his appellate rights). Counsel indicated his intent to file an Anders 1
brief in the appeal. Consequently, this court afforded M r. Armour an opportunity
to file an opposition to the government’s enforcement motion. He did not
respond.
This court will enforce a criminal defendant’s waiver of his right to appeal
so long as the following three elements are satisfied: (1) “the disputed appeal
falls within the scope of the w aiver of appellate rights,” (2) the defendant’s
waiver of his appellate rights was knowing and voluntary, and (3) enforcing the
waiver w ill not result in a miscarriage of justice. United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam). W e have carefully reviewed
the plea agreement and the transcript of the hearing at which M r. Armour entered
his guilty plea. W e conclude that the Hahn factors have been satisfied.
Accordingly, we GRANT the government’s motion to enforce the plea
agreement and DISM ISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Per Curiam
1
Anders v. California, 386 U.S. 738 (1967).
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