                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 4, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,

    v.                                                  No. 09-7038
                                              (D.C. No. 6:08-CR-00025-FHS-1)
    JOHNNY EDWARD SMITH, a/k/a                          (E.D. Okla.)
    “Tick,” a/k/a “Little Johnny,”

                Defendant!Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.


         Pursuant to a plea agreement, Johnny Edward Smith pleaded guilty to one

count of conspiracy to distribute controlled substances in violation of 21 U.S.C.

§ 846 and agreed to forfeit $4,000,000.00 under 21 U.S.C. § 853. He was

sentenced to 292 months’ imprisonment. Although the plea agreement contained

a waiver of his appellate rights, Mr. Smith filed a pro se notice of appeal.



*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
      The government has moved to enforce the plea agreement based on

Mr. Smith’s appellate waiver. Under United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004), we will enforce an appellate waiver if (1) the “appeal falls

within the scope of the waiver of appellate rights;” (2) “the defendant knowingly

and voluntarily waived his appellate rights;” and (3) “enforcing the waiver would

[not] result in a miscarriage of justice.” Id. at 1325. Mr. Smith, through his

appointed counsel, concedes all three.

      Accordingly, we GRANT the government’s motion to enforce and

DISMISS this appeal.


                                         ENTERED FOR THE COURT
                                         PER CURIAM




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