                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 11, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-4182
          v.                                               (D. Utah)
 M ARK JOHN PYPER,                               (D.C. No. 2:05-CR-385-DB)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.




      After examining the briefs and appellate record, 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.

      M ark John Pyper pleaded guilty to manufacturing or attempting to

manufacture fifty grams or more of methamphetamine in violation of

21 U.S.C. § 841(a), (b)(1)(A)(viii). Pyper’s properly calculated advisory


      *
        This order and judgment is not binding precedent except under the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.
sentencing guideline range was 151 to 188 months. On the government’s Federal

Rule of Criminal Procedure 35(b) motion, however, the district court reduced

Pyper’s offense level by three levels, resulting in an advisory sentencing range of

108 to 135 months. The district court sentenced Pyper to 108 months’

imprisonment. In so doing, the district court, after analyzing the factors set out in

18 U.S.C. § 3553(a), specifically rejected Pyper’s request for a further downward

adjustment to his offense level or a below-guidelines-range sentencing variance.

      Pyper’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), advising the court that Pyper’s appeal is wholly frivolous.

Accordingly, counsel also seeks permission to withdraw. In particular, counsel

notes a review of the plea colloquy clearly demonstrates Pyper’s guilty plea was

knowing and voluntary. Furthermore, counsel indicates the district court utilized

sentencing procedures and arrived at a sentence that complies with both the

procedural and substantive requirements of United States v. Booker, 543 U.S. 220

(2005).

      Under Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit an “appellate brief indicating any potential

appealable issues.” Id. Once notified of counsel’s brief, the defendant may then

submit additional arguments to this court. Id. W e “must then conduct a full

                                          -2-
examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id.

       Pyper was given notice of the Anders brief and counsel’s motion to

withdraw, but did not file a brief of his own. The government likewise declined

to file a brief. Instead, it filed a letter notifying the court that, as part of his plea

agreement, Pyper specifically waived his right to file an appeal from any sentence

within a properly calculated advisory guidelines range. 1 Our resolution of the

case is, therefore, based on counsel’s Anders brief, the government’s letter in

response, and this court’s independent review of the record.

       In United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc),

this court held it would enforce appeal waivers as long as three conditions were

met: (1) the matter on appeal falls within the scope of the waiver; (2) the

defendant-appellant knowingly and voluntarily waived his appellate rights; and

(3) enforcing the waiver will not result in a miscarriage of justice. Pursuant to

our obligation under Anders, this court has undertaken a searching review of the

record in this case. That review unequivocally demonstrates that the Hahn factors

favor enforcing Pyper’s waiver of appellate rights. Accordingly, this court




       1
        This court notes that the interests of judicial economy would have been
better served had the government filed a timely motion, pursuant to 10th Cir. R.
27.2(A)(i)(d), to enforce the appeal waiver, rather than waiting to provide such
notification only after counsel filed her Anders brief and motion to withdraw.

                                            -3-
GR ANTS counsel’s motion to withdraw and DISM ISSES the appeal on the basis

of Hahn.

                                   ENTERED FOR THE COURT



                                   M ichael R. M urphy
                                   Circuit Judge




                                    -4-
