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

                            FOR THE TENTH CIRCUIT                         December 27, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-2179
                                                   (D.C. No. 5:16-CR-02815-WJ-1)
 KYLA LASHAWN NORBY,                                          (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, MORITZ, and CARSON, Circuit Judges.
                 _________________________________

      Kyla Lashawn Norby pleaded guilty to an information charging her with

production of child pornography. The parties stipulated to a sentence of 15 years’

imprisonment (the mandatory minimum), followed by a 15-year term of supervised

release. As part of her plea agreement, Ms. Norby agreed to pay restitution to the

victim in the amount of $210,012.00 and further agreed to “grant the United States a

wage assignment, liquidate assets, or complete any other tasks which will result in

immediate payment in full, or payment in the shortest time in which full payment can




      *
         This order and judgment is not binding precedent, except under the doctrines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.
be reasonably made as required under 18 U.S.C. § 3572(d).” Mot. to Enforce, Ex. 1

at 5. The district court ordered the agreed-upon restitution amount.

      The government later filed a motion seeking an order authorizing payment of

the amount in Ms. Norby’s inmate account after it received notice that she had a

balance of $28,348.66 (these funds came from the first payment of an inheritance).

Ms. Norby objected to the government’s motion, requesting that only 50 percent of

the amount in her account be garnished. The district court granted the government’s

motion and ordered that all funds in excess of $100 currently held in Ms. Norby’s

account be remitted as payment towards her restitution obligation. Although her plea

agreement contained an appeal waiver, she filed a notice of appeal from the district

court’s order. The government has moved to enforce the appeal waiver in

Ms. Norby’s plea agreement pursuant to United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam).

      Under Hahn, 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 [her] appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. The government asserts that

Ms. Norby’s appeal falls within the scope of her appeal waiver, she knowingly and

voluntarily waived her appeal rights, and enforcing the waiver would not result in a

miscarriage of justice. In her response, Ms. Norby states that “[she] understands the

law as set out in the Government’s pleading” and “[s]he has no response to the legal

argument.” Resp. at 1. “[B]ut [she] submits that a more fair withdrawal, that would

                                           2
leave her with some of her father’s inheritance, would be more appropriate.” Resp.

at 1.

        Because Ms. Norby does not contest the validity of her appeal waiver, we see

no basis to consider her argument about the withdrawal of funds from her inmate

account. Accordingly, we grant the government’s motion to enforce the appellate waiver

in the plea agreement and we dismiss this appeal.


                                            Entered for the Court
                                            Per Curiam




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