                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                           March 28, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1384
                                                   (D.C. No. 1:18-CR-00074-PAB-1)
 FRANK STEVEN WIETECHA, JR.,                                   (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MORITZ, KELLY, and EID, Circuit Judges.
                  _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in Frank Steven Wietecha, Jr.’s plea agreement. We grant

defense counsel’s motion to withdraw, grant the government’s motion to enforce

Wietecha’s appeal waiver, and dismiss the appeal.

      Wietecha pleaded guilty to possession of child pornography in violation of

18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The statutory maximum penalty for this

offense is twenty years’ imprisonment. See 18 U.S.C. § 2252A(b)(2). After finding

that the applicable advisory guidelines sentencing range was 130 to 162 months’



      *
         This order and judgment is not binding precedent, except under the doctrines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.
imprisonment the district court sentenced Wietecha at the bottom of the range to

130 months.

      Despite the broad appeal waiver in his plea agreement, Wietecha filed a notice

of appeal. The government filed a motion to enforce the appeal waiver under United

States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). In

evaluating a motion to enforce, 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.

      Wietecha’s counsel responded to the government’s motion. Citing Anders v.

California, 386 U.S. 738, 744 (1967), counsel stated that Wietecha has no

non-frivolous argument against enforcement of his appeal waiver. Counsel also

requested permission to withdraw from representing Wietecha. See id. We gave

Wietecha an opportunity to file a pro se response to the motion to enforce, but he has

not done so.

      We have reviewed the proceedings in accordance with our obligation under

Anders. See id. at 744. We conclude the Hahn factors have been satisfied, and there

is no non-frivolous argument to make against enforcing the appellate waiver.

Accordingly, we grant the motion to enforce and dismiss this appeal. We also grant

counsel’s motion to withdraw.


                                           Entered for the Court
                                           Per Curiam

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