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

                            FOR THE TENTH CIRCUIT                          February 20, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-1401
                                                   (D.C. No. 1:18-CR-00293-RBJ-1)
 JOHN VAN WU,                                                 (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
                  _________________________________

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

appeal waiver in John Van Wu’s plea agreement.

      Dr. Wu was charged in a 51-count indictment with mail fraud, in violation of

18 U.S.C. § 1341; falsification of records, in violation of 18 U.S.C. § 1519; and

diversion of oxycodone, in violation of 21 U.S.C. § 841(a)(1). The district court

granted his motion for severance, and after a jury found him guilty of multiple mail

fraud and falsification counts, Dr. Wu pleaded guilty to one count of diversion of




      *
         This order and judgment is not binding precedent, except under the doctrines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.
oxycodone. The district court sentenced him to concurrent 51-month prison terms on

each count and ordered him to pay about $95,000 in restitution.

       As part of his plea agreement, Dr. Wu agreed to waive his right to appeal his

conviction and sentence for both the tried and pled offenses unless (1) the court

imposed a sentence above the statutory maximum; (2) the sentence exceeds the

advisory guideline range applicable to a total offense level of 23 (or 21, if the “safety

valve” provision in USSG § 5C1.1 applied); or (3) the government appealed the

sentence imposed. Despite this broad appeal waiver, he filed a notice of appeal.

His docketing statement indicates that he intends to challenge the district court’s

rulings on pre-trial motions, its evidentiary rulings during trial, the sufficiency of the

evidence at trial, and the sentence and restitution order. The government filed a

motion to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315,

1328 (10th Cir. 2004) (en banc) (per curiam).

       In response to the government’s motion, Dr. Wu’s counsel cited Anders v.

California, 386 U.S. 738, 744 (1967), and stated that Dr. Wu has no non-frivolous

argument against enforcement of his appeal waiver. Counsel also requested

permission to withdraw from representing Dr. Wu. See id. We gave Dr. Wu an

opportunity to file a pro se response to the motion to enforce, but he has not done so.

       In evaluating a motion to enforce, 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.” Hahn, 359 F.3d at

                                            2
1325. Having reviewed the proceedings in accordance with our obligation under

Anders, see 386 U.S. at 744, we conclude that the Hahn factors have been met and

that there is no non-frivolous argument to make against enforcing the appeal waiver.

       As to the first Hahn factor, none of the exceptions to the appeal waiver apply,

so Dr. Wu’s appeal of his conviction and sentence fall within the scope of the waiver.

Specifically, the statutory maximum sentence for each offense is twenty years. See

18 U.S.C. §§ 1341 (mail fraud) and 1519 (falsification); 21 U.S.C. § 841(b)(1)(C)

(diversion of oxycodone). The district court determined that the offense level was 23

and that the applicable guidelines range was between 46 and 57 months, and it

sentenced Dr. Wu to a mid-range sentence of 51 months. Dr. Wu’s sentence thus

does not exceed either the statutory maximum or the applicable guidelines range for

an offense level of 23, and the government did not appeal the sentence. As for the

second and third Hahn factors, the written plea agreement and the colloquy at the

change of plea hearing confirm that Dr. Wu knowingly and voluntarily waived his

appellate rights, and there is no basis for concluding that enforcing the waiver would

result in a miscarriage of justice.

       Accordingly, we grant the government’s motion to enforce Dr. Wu’s appeal

waiver and dismiss this appeal. We also grant defense counsel’s motion to withdraw.


                                           Entered for the Court
                                           Per Curiam




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