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

                             FOR THE TENTH CIRCUIT                          May 16, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-1350
                                                 (D.C. No. 1:14-CR-00444-PAB-1)
KEVIN WASHINGTON,                                            (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and McHUGH, Circuit Judges.
                 _________________________________

      Kevin Washington pleaded guilty to one count of attempted possession of,

with intent to distribute, 500 grams or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B), and 846. In his plea agreement, the parties agreed to

recommend a sentence of 60 months’ imprisonment (the statutory mandatory

minimum, which turned out to be less than the Guidelines range of 84 to 105

months). Mr. Washington also agreed to waive his right to appeal. Nevertheless,

after the district court accepted the recommendation and sentenced him to 60 months’


      *
         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This order and judgment is not binding precedent, except under the doctrines of law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.
imprisonment, he appealed. The government has moved to enforce the appeal waiver

under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam).

      Hahn sets forth three factors to evaluate an appeal waiver: “(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. In

response to the government’s motion, Mr. Washington, through counsel, conceded

the motion by withdrawing his previously expressed opposition and failing to dispute

any of the Hahn factors.

      We need not address a Hahn factor that the defendant does not dispute.

See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). In light of

Mr. Washington’s concession, the motion to enforce is granted and this appeal is

dismissed.


                                           Entered for the Court
                                           Per Curiam




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