                                                                                 FILED
                      UNITED STATES COURT OF APPEALS                 United States Court of Appeals
                                                                             Tenth Circuit
                            FOR THE TENTH CIRCUIT
                        _________________________________                     May 3, 2019

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

 v.                                                         No. 18-4175
                                                   (D.C. No. 2:17-CR-00606-TS-1)
 RANDY CHEEK,                                                 (D. Utah)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, BACHARACH, and CARSON, Circuit Judges.
                  _________________________________

      Randy Cheek pleaded guilty to possession of methamphetamine with intent to

distribute and being a felon in possession of a firearm and ammunition. He was

sentenced to serve 96 months in prison after the district court varied downward from

the advisory Sentencing Guidelines range of 108 to 135 months. Although his plea

agreement contained a waiver of his appellate rights, he filed a notice of appeal.

The government has moved to enforce the appeal waiver in the plea agreement

pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam).



      *
         This order and judgment is not binding precedent, except under the doctrines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.
      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 his appellate rights; and (3) whether enforcing the waiver would

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

Hahn conditions have been satisfied.

      In his response, Mr. Cheek states that he “does not dispute that his plea, along

with his waiver of appeal rights, was knowingly and voluntarily entered.” Resp. at 1.

He also states that his “appeal falls within the terms of the appeal waiver he accepted

in exchange for the United States’ promises in the plea agreement.” Id. Finally, he

states that “the record in this case does not disclose any reasonable basis for asserting

that enforcement of the plea waiver would result in a miscarriage of justice under the

applicable standard.” Id. (internal quotation marks omitted).

      Because Mr. Cheek concedes that his appeal is within the scope of the waiver,

his waiver was knowing and voluntary, and enforcing the waiver would not result in

a miscarriage of justice, we grant the government’s motion to enforce the appeal

waiver and dismiss the appeal.


                                            Entered for the Court
                                            Per Curiam




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