                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 February 22, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 11-3220
    v.                                          (D.C. No. 2:10-CR-20134-JAR-1)
                                                            (D. Kan.)
    PATRICK LEE PRICE,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.



         After accepting a plea agreement that included a waiver of his right to

appeal, Patrick Lee Price pleaded guilty to possession of more than fifty grams of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1)

and 841(b)(1)(A)(viii) and 18 U.S.C. § 2, and to possession of a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c) and 2.



*
      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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
He was sentenced to a total of 300 months in prison (the statutory minimums of

240 months and 60 months, to be served consecutively, as required by statute).

Notwithstanding the appeal waiver, he appealed. The government now has moved

to enforce the waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.

2004) (en banc) (per curiam).

      In evaluating a motion to enforce a waiver, 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. Mr. Price’s counsel has filed a response stating that he cannot

identify any non-frivolous argument regarding these factors. We gave Mr. Price

the opportunity to file a pro se response, but his deadline has passed and as of

today’s date, we have not received anything from him.

      Our independent review confirms that the proposed issue for appeal

(identified in Mr. Price’s docketing statement as an Eighth Amendment challenge

to the twenty-five-year sentence) falls within the scope of the waiver. The plea

agreement clearly sets forth the waiver and states that it was knowing and

voluntary, and the district court discussed the waiver and voluntariness at the plea

hearing. There is no contradictory evidence indicating that Mr. Price did not

knowingly and voluntarily accept the waiver. Finally, there is no indication that




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enforcing the waiver would result in a miscarriage of justice as that term is

defined in Hahn, 359 F.3d at 1327.

      The motion to enforce is GRANTED and this matter is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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