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

                           FOR THE TENTH CIRCUIT                        May 12, 2016

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 16-3039
                                                (D.C. No. 6:05-CR-10137-JTM-1)
MICHAEL A. SARBER,                                          (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


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


      Michael A. Sarber pled guilty to one count of possession with intent to

distribute more than five grams of methamphetamine in violation of 21 U.S.C.

§ 841(a). In his plea agreement, Mr. Sarber waived the right to appeal or collaterally

attack his sentence, provided it was within the applicable sentencing guideline range.

The district court sentenced him to 188 months in prison, which was at the low end of

that range, followed by four years of supervised release.


      *
          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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
       Undeterred by the waiver, Mr. Sarber has filed a direct appeal, two habeas

petitions, four motions in district court asking the district court to order his federal

sentence to run concurrently with a 54-month sentence that was imposed earlier in a

Wisconsin case, and, most recently, this appeal from the district court’s denial of his

last motion requesting concurrent sentences. The government has moved to enforce

the waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam), which sets out the conditions for enforcing appeal waivers, id. at 1325.

Mr. Sarber did not respond to the government’s motion, despite court orders asking

him to do so and extending the deadline. We grant the motion and dismiss the

appeal.

       We have already enforced the waiver once to dismiss Mr. Sarber’s direct

appeal. See United States v. Sarber, 196 F. App’x 673, 676 (10th Cir. 2006). There,

we outlined the terms of the plea agreement in detail, analyzed the waiver, and

determined the Hahn conditions were satisfied—a point Mr. Sarber has never

contested. Id. at 674-76. We also noted that the plea agreement “clearly set out the

maximum sentence defendant faced and explained the appellate rights he

relinquished in exchange for the benefits offered by the government” and that

Mr. Sarber’s sentence complies with both the agreement’s terms and his

understanding as expressed at the plea hearing. Id. at 675-76.

       Mr. Sarber now asserts a different sentencing error—namely, that his federal

and state sentences should run concurrently because the government agreed in the

plea agreement to make such a recommendation. Our reasoning in Sarber applies

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equally here. The waiver is valid,1 and this appeal falls within its scope. See United

States v. Belcher, No. 15-3208, 2016 WL 722706, at *2 (10th Cir. Feb. 24, 2016)

(“[W]e have consistently found [challenges to a district court’s decision to run

federal sentences consecutively to previously imposed state sentences] to be covered

by general appeal waivers that did not include language specifically addressing the

consecutive/concurrent nature of the sentence imposed vis à vis a prior state

sentence.”); cf. Hahn, 359 F.3d at 1328 (enforcing a general appeal waiver to dismiss

a challenge to the district court’s decision not to impose a concurrent sentence where

the defendant had a prior federal sentence).

      For these reasons, we grant the government’s motion to enforce and dismiss

the appeal. Mr. Sarber’s motion to proceed without prepayment of costs or fees is

granted. Nevertheless, he is required to pay all filing and docketing fees. Only

prepayment of fees is waived, not the fees themselves. 28 U.S.C. § 1915(a)(1).

Payment shall be made to the Clerk of the District Court.

                                               Entered for the Court
                                               Per Curiam

      1
         In Sarber, we did envision some errors that “could undercut an appeal
waiver in a non-circular way,” such as a sentence that “deviates from the plea
agreement’s terms or the defendant’s expressed understanding at the time of his
plea.” Id. at 675 n.2. But the alleged error is not of this type. Mr. Sarber was well
aware the court could deviate from the parties’ agreement because the plea agreement
explicitly stated that “[t]he parties understand this agreement binds the parties only
and does not bind the Court.” R. Vol. 1 at 55. Likewise, he expressed his
understanding that the district judge had the sole right to determine what sentence to
impose, so long as it did not exceed the 40-year maximum. His sentence is not
contrary to the plea agreement.



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