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

                             FOR THE TENTH CIRCUIT                        February 24, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-6206
                                                   (D.C. No. 5:14-CR-00341-F-1)
WILLIAM VONTRAIL JOHNSON,                                  (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before McHUGH, EBEL, MORITZ, Circuit Judges.
                  _________________________________

      After entering into a plea agreement containing a waiver of appellate rights,

William Vontrail Johnson pled guilty to one count of child sex trafficking. As part of

the agreement, the government promised to recommend a sentence of no more than

30 years, which it did. Mr. Johnson, in turn, agreed to waive his right to appeal his

guilty plea and sentence, unless the court imposed a sentence higher than the

guidelines range. The district court determined that the appropriate guidelines range

was 324-405 months and, following the government’s recommendation, imposed a


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
360-month sentence. Despite having waived his right to appeal a sentence within the

guidelines range, Mr. Johnson filed an appeal to challenge his sentence. The

government then moved 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, Mr. Johnson’s counsel stated that the

appeal was wholly frivolous because it was clearly barred by the appeal waiver and

there was no basis for claiming that the sentence was either procedurally or

substantively unreasonable. Counsel also moved to withdraw. We gave Mr. Johnson

notice of his counsel’s response and an opportunity to file his own response. The

deadline for doing so has long passed, and we have received no response from

Mr. Johnson.

      Accordingly, we have independently reviewed the record in light of the

parties’ filings to decide whether an opposition to the government’s motion to

enforce is “wholly frivolous,” Anders v. California, 386 U.S. 738, 744 (1967). As

part of our review, we have independently considered the relevant factors governing

the enforcement of an appeal waiver, namely “(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 1325. We agree

with counsel’s assessment that the appeal is wholly frivolous; Mr. Johnson cannot

assert any non-frivolous argument that would support a determination that the appeal

waiver does not bar his challenge to his sentence.

                                          2
      Accordingly, we grant the government’s motion to enforce the 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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