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

                              FOR THE TENTH CIRCUIT                      May 11, 2016

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

      Plaintiff - Appellee,

v.                                                        No. 15-5123
                                                (D.C. No. 4:15-CR-00101-JED-1)
BRYAN JAMES MURPHY,                                       (N.D. Okla.)
a/k/a Bryan Michael Sebesta,

      Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before KELLY, EBEL, and GORSUCH, Circuit Judges.


      Bryan James Murphy pled guilty pursuant to a written plea agreement to one

count of making a false statement to a federal agency. The plea agreement contained

a broad waiver of appellate rights that reserved only “the right to appeal from a

sentence which exceeds the statutory maximum; and from contested sentencing

issues if the sentence exceeds six (6) months.” Mot. to Enforce, Attach. 1, at 3. The

statutory maximum was five years; Mr. Murphy received a sentence of four months’

*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
imprisonment. Despite his waiver, Mr. Murphy filed an appeal seeking to challenge

his sentence. The government then moved to enforce the appeal waiver under United

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

      An appeal waiver must be enforced if (1) “the disputed appeal falls within the

scope of the waiver of appellate rights”; (2) “the defendant knowingly and

voluntarily waived his appellate rights”; and (3) “enforcing the waiver would [not]

result in a miscarriage of justice.” Id. at 1325. The government’s motion addressed

each of these factors and why they were met.

      In response to the government’s motion, Mr. Murphy’s counsel stated that he

could not discern any non-frivolous ground on which to oppose the motion and so

moved to withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel did

identify and analyze three potential issues that he believed Mr. Murphy wanted to

raise: (1) that the sentence was substantively unreasonable because it included a term

of incarceration; (2) that defense counsel did not properly advocate on Mr. Murphy’s

behalf at the sentencing hearing; and (3) that Mr. Murphy’s right of allocution was

not fully vindicated because defense counsel convinced him to forego making

statements to the court during his allocution. We gave Mr. Murphy notice of his

counsel’s response and an opportunity to file his own response. The deadline for

doing so has long passed, and we have received no response from Mr. Murphy.

      We have independently reviewed the record, see id. at 744, and we conclude

that there is no non-frivolous defense to the government’s motion. The record


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unequivocally establishes that the appeal falls within the scope of the waiver, the

waiver was knowing and voluntary, and enforcing the waiver will not result in a

miscarriage of justice. See Hahn, 359 F.3d at 1325. Accordingly, we grant the

government’s motion to enforce and dismiss the appeal. We also grant counsel’s

motion to withdraw.

                                               Entered for the Court
                                               Per Curiam




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