                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 17, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 08-3073
    v.                                       (D.C. No. 04-CR-20089-KHV-JPO-1)
                                                          (D. Kan.)
    MONTGOMERY CARL AKERS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



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

appeal waiver contained in defendant Montgomery Carl Akers’ plea agreement.

See United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

Because Aker’s attempted appeal of the denial of his Fed. R. Crim. P. 12(b)(3)




*
      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 This order and judgment is not binding precedent, except under the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.
motion falls within the scope of his appeal waiver, we grant the government’s

motion.

      Akers pleaded guilty to one count of wire fraud in 2005. He did so

pursuant to a plea agreement that contained an appeal waiver in which he

“knowingly and voluntarily waive[d] any right to appeal or collaterally attack any

matter in connection with [his] prosecution, conviction and sentence,” with the

sole exception of retaining a right to appeal his sentence if the district court

departed upward from the applicable sentencing guidelines in sentencing him.

Petition to Enter Plea and Plea Agreement, United States v. Akers, No. 04-20089-

01-KHV (D. Kan. Sept. 21, 2005), R. Doc. 120-2 at 16-17. The district court did

depart upward, in part because Akers continued to engage in fraudulent conduct

after his plea. Akers appealed his sentence, and this court affirmed. United

States v. Akers, 261 F. App’x 110 (10th Cir. 2008).

      On December 7, 2007, Akers filed a motion in district court to void his

conviction and sentence, citing Rule 12(b)(3). The district court denied the

motion, ruling that Rule 12(b)(3) motions must be filed while the case is still

pending, not after the judgment and sentence have been entered. Akers has filed

an appeal from that order, and, in response, the government has filed a motion to

enforce the appeal waiver. The government contends that Akers’ appeal falls

within the scope of the appeal waiver. We agree.




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      In evaluating whether an appeal is precluded by a defendant’s plea

agreement waiver of appellate rights, we consider: “(1) whether the disputed

appeal falls within the scope of the waiver . . . ; (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.

Akers challenges only the first factor, asserting in response to the motion to

enforce that his appeal waiver is inapplicable to his Rule 12(b)(3) motion. His

argument is without merit.

      Akers waived his right to appeal “any matter in connection with his

prosecution, conviction and sentence,” R. Doc. 120-2, at 16 (emphasis added).

His Rule 12(b)(3) motion asserted that the government lacked authority to bring

an indictment against him and, therefore, that the trial court lacked subject matter

jurisdiction to convict and sentence him. On this basis, his motion and appeal

seek to void his conviction, which is quite clearly a matter relating to his

prosecution and conviction. Thus, his appeal falls squarely within the scope of

his waiver. See United States v. Lyons, 510 F.3d 1225, 1233 (10th Cir. 2007)

(holding that motion to dismiss indictment is within scope of defendant’s appeal

waiver of “any matter in connection with his prosecution, conviction and

sentence”), cert. denied, 128 S.Ct. 1915 (2008). Akers does not assert that his

waiver was not knowingly and voluntarily entered or that enforcement of the




                                          -3-
waiver would be a miscarriage of justice, nor do we see any meritorious basis for

such assertions.

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

waiver and DISMISS the appeal. Akers’ “Combined Motion to Notify the Court

of Willful Obstruction of Justice by Surrogates of the Appellee; and, for

Production of the Master Docket Sheet of this Case upon the Appellant”; “Motion

to File Supplemental Addendum to Appellant’s Response”; “Combined Motion

for Clarification and Injunctive Relief and Other Orders of the Court”;

“Addendum to Motion for Clarification and Injunctive Relief and Other Orders of

the Court”; and any other outstanding and pending motions filed by Akers in this

matter are DISMISSED as moot.



                                       ENTERED FOR THE COURT


                                       PER CURIAM




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