                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 6, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 11-6313
    v.                                          (D.C. No. 5:10-CR-00125-R-1)
                                                        (W.D. Okla.)
    EDDIE BLAINE CUMMINGS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, O’BRIEN, and MATHESON, Circuit Judges.



         Eddie Blaine Cummings entered a guilty plea to one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). His plea

agreement included a waiver of his right to appeal any matter in connection with

his sentence, unless the district court departed upward from the advisory

guideline range. Mr. Cummings was sentenced to 96 months of imprisonment,



*
      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 This order and judgment is not binding precedent, except under the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.
within the advisory guideline range. Notwithstanding the appeal waiver, he filed

an appeal seeking to challenge his sentence. The government now has moved to

enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam).

      Under Hahn, in evaluating a motion to enforce a waiver, 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. In response to the government’s motion, Mr. Cummings,

through counsel, concedes each of these factors.

      We have reviewed the record and Mr. Cummings’s response, and we agree

that the appeal falls within the scope of the waiver, all the evidence of record

shows that Mr. Cummings knowingly and voluntarily waived his right to appeal,

and enforcing the waiver would not result in a miscarriage of justice.

Accordingly, the motion to enforce the appeal waiver is GRANTED and this

matter is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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