United States v. Sestak

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 19, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-8062
(D.C. No. 2:19-CR-00099-SWS-1)
JEREMY LEE SESTAK, (D. Wyo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MORITZ and EID, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Jeremy Lee Sestak’s plea agreement. Exercising jurisdiction under
28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
Mr. Sestak pleaded guilty to one count of distribution and attempted
distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and
one count of possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). He was sentenced to serve 180 months in prison.
*
This order and judgment is not binding precedent, except under the doctrines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.
Although his plea agreement contained a waiver of his appellate rights,
Mr. Sestak filed a notice of appeal. The government moved to enforce the appeal
waiver pursuant to United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en
banc) (per curiam).
Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325. The government asserts that all of
the Hahn conditions have been satisfied because Mr. Sestak’s appeal is within the
scope of the appeal waiver, he knowingly and voluntarily waived his appellate rights,
and enforcing the waiver would not result in a miscarriage of justice.
In response to the government’s motion, Mr. Sestak, through counsel,
concedes his appeal waiver is enforceable under the standard set forth in Hahn.
Based on this concession and our independent review of the record, we grant the
government’s motion to enforce the appeal waiver and dismiss the appeal. See
United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting that court need
not address uncontested Hahn factors).
Entered for the Court
Per Curiam
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