United States v. Mitchell

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-5056
(D.C. No. 4:16-CR-00150-GKF-1)
PAUL DAVID MITCHELL, II, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before LUCERO, HARTZ, and BACHARACH, Circuit Judges.
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After entering into a plea agreement that included an appeal waiver, Paul
David Mitchell, II, pleaded guilty to bank robbery, interference with interstate
commerce, and firearm offenses. Although the parties agreed to a 28-year sentence,
Mitchell acknowledged in the agreement that he waived the right to appeal any
sentence below the statutory maximum. The district court sentenced him to 28 years’
imprisonment, which was below the statutory maximum. Despite the waiver,
Mitchell has filed a notice of appeal to challenge the sentence. Dktg. Stmt. at 3. The
*
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This order and judgment is not binding precedent, except under the doctrines of law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.
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, Mitchell’s
counsel says he “cannot claim any legally viable basis that the government’s [motion
to enforce] should be denied.” Resp. at 4.
This court gave Mitchell an opportunity to file a pro se response to the motion
to enforce. There has been no response.
We have reviewed the motion to enforce and the record and conclude that
Mitchell’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 Hahn, 359 F.3d 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
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