                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 29, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-4066
                                               (D.C. No. 2:08-CR-00250-TS-1)
    KYLE EUGENE CORNWELL,                                 (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.



         Kyle Eugene Cornwell entered a guilty plea to one count of conspiring to

attempt to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1).

His plea agreement included a waiver of his right to appeal his sentence. The

district court determined that the advisory sentencing guideline range was 84 to

105 months and imposed a sentence of 84 months, at the low end of the range.



*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
Mr. Cornwell has now filed an appeal seeking to challenge the calculation and

reasonableness of his sentence. The government has moved to enforce the appeal

waiver in Mr. Cornwell’s plea agreement pursuant to our decision in United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). We grant the motion

and dismiss the appeal.

      In determining whether an appeal should be dismissed based on an appeal

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. Mr. Cornwell, through counsel, concedes

that the waiver of his appeal rights was knowing and voluntary. He admits also

that his appeal falls within the express terms of his appeal waiver. Finally, he

acknowledges that “the record in this case does not disclose any reasonable basis

for finding that enforcement of the plea waiver ‘would result in a miscarriage of

justice.’” Resp. to Mot. to Enforce at 2 (quoting Hahn, 359 F.3d at 1325).

Because Mr. Cornwell has not established any of the applicable exceptions to the

enforcement of his appeal waiver, we conclude that the government’s motion to




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enforce should be granted. Accordingly, we GRANT the motion and DISMISS

the appeal.



                                  ENTERED FOR THE COURT
                                  PER CURIAM




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