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

                           FOR THE TENTH CIRCUIT                     May 17, 2012

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

             Plaintiff-Appellee,

v.                                                        No. 12-3071
                                                (D.C. No. 5:11-CR-40107-JAR-1)
JEROME C. VETAW,                                            (D. Kan.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before LUCERO, HARTZ, and MATHESON, Circuit Judges.


      After entering into a plea agreement that included an appeal waiver, Jerome C.

Vetaw pleaded guilty to possession with intent to distribute less than 50 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1). In the plea agreement, Vetaw

waived among other things “the right to appeal the sentence imposed . . . except to

the extent, if any, the court departs or varies upwards from the applicable sentencing

guideline range determined by the court.” Plea Agreement at 9. Vetaw was


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentenced to 77 months’ imprisonment, which was at the low end of the advisory

Guidelines range.

      Vetaw has filed a notice of appeal that raises the issue of whether he qualified

for sentencing under the career offender guidelines. The government has moved to

enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328

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

      In evaluating 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.

Vetaw’s lawyer has filed a response in which he says that he “is aware of no

non-frivolous grounds upon which to oppose the Government’s motion.” Resp. at 1.

      Our independent review confirms that the proposed issue for appeal falls

within the scope of the waiver. The plea agreement clearly sets forth the waiver and

states that it was knowing and voluntary, and the district court discussed the waiver

and voluntariness at the plea hearing. There is no contradictory evidence indicating

that Vetaw did not knowingly and voluntarily accept the waiver. Finally, there is no

indication that enforcing the waiver would result in a miscarriage of justice.

      The motion to enforce is GRANTED and this matter is DISMISSED.

                                                 ENTERED FOR THE COURT
                                                 PER CURIAM



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