United States v. Davis , 543 F. App'x 892 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-3246
(D.C. No. 5:13-CR-40021-JAR-1)
MARK DAVID DAVIS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before LUCERO, HARTZ, and PHILLIPS, Circuit Judges.
After entering into a plea agreement that included a waiver of his right to
appeal, Mark David Davis pleaded guilty to one count of failing to register as a sex
offender, in violation of 18 U.S.C. § 2250(a). He was sentenced to 33 months of
imprisonment (with nine months of that term to be served concurrently with an
anticipated state sentence) and three years of supervised release. The sentence fell at
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
the low end of the 33- to 41-month Guidelines range calculated by the district court,
but it exceeded the sixteen-month sentence recommended by the parties.
Notwithstanding the appeal waiver, Mr. Davis appealed, seeking to challenge
the procedural and substantive reasonableness of his sentence. The government has
moved to enforce the waiver under United States v. Hahn, 359 F.3d 1315, 1325, 1328
(10th Cir. 2004) (en banc) (per curiam). In response, through counsel, Mr. Davis has
conceded that each of the three factors set forth in Hahn, id. at 1325, is satisfied.
And although we need not address a Hahn factor that the defendant does not contest,
see United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005), our independent
review confirms that all of the Hahn factors are satisfied.
The motion to enforce is granted and the appeal is dismissed.
Entered for the Court
Per Curiam
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