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

                           FOR THE TENTH CIRCUIT                         May 7, 2013

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

             Plaintiff-Appellee,

v.                                                       No. 13-5021
                                               (D.C. No. 4:12-CR-00133-CVE-1)
DON E. OSBY, JR.,                                        (N.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, HOLMES, and MATHESON, Circuit Judges.


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

appeal waiver contained in defendant Don E. Osby, Jr.’s plea agreement. The

defendant pleaded guilty to one count of making a false statement to a financial

institution, in violation of 18 U.S.C. § 1014. The maximum statutory sentence for

this offense is 30 years’ imprisonment or a fine of not more than $1,000,000, or both.


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
See id. After calculating defendant’s applicable advisory guidelines sentencing range

as 12 to 18 months’ imprisonment, the district court sentenced him to a term of

imprisonment of 12 months and one day, five years of supervised release, restitution

in the amount of $100,088.08, and a $100 special assessment. In exchange for

defendant’s guilty plea, the government dismissed 17 additional counts in the

indictment.

      In his plea agreement, the defendant “knowingly and voluntarily agree[d]

to . . . waive[] the right to directly appeal the conviction and sentence pursuant to

28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a),” except that he “reserve[d] the right to

appeal from a sentence which exceeds the statutory maximum.” Mot. to Enforce,

Attach. 1 (Plea Agreement) at 3. The defendant further agreed to “waive[] the right

to appeal the District Court’s determination of the amount of restitution and the

Court’s subsequent order.” Id. The defendant signed his name directly beneath the

appellate waiver language, stating, “The defendant expressly acknowledges that

counsel has explained his appellate and post-conviction rights; that defendant

understands his rights; and that defendant knowingly and voluntarily waives those

rights as set forth above.” Id. at 4. The defendant also initialed each page of the plea

agreement, signed the final page, and executed a separate acknowledgment stating

that he had read the plea agreement, he understood it, and he voluntarily agreed to it.

      The government filed a motion to enforce the plea agreement under United

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


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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. The defendant’s

counsel filed a response stating that no valid issue exists for appeal.

      Our independent review confirms that the requirements for enforcing the plea

waiver have been satisfied. Accordingly, we grant the motion to enforce and dismiss

the appeal.


                                                Entered for the Court
                                                Per Curiam




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