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

                             FOR THE TENTH CIRCUIT                        August 30, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 17-4003
                                                 (D.C. No. 1:15-CR-00101-TS-1)
BRIAN DALE LARSEN,                                          (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, BACHARACH, and PHILLIPS, Circuit Judges.
                   _________________________________

      After entering into a plea agreement that included an appeal waiver, Brian

Dale Larsen pleaded guilty to possession of methamphetamine with intent to

distribute. As part of the plea agreement, the government agreed to: (1) dismiss

three other counts of the indictment; (2) not to file a sentence enhancement; and

(3) recommend at sentencing a term of incarceration within the Sentencing

Guidelines (Guidelines) range determined by the district court. For his part, Larsen

acknowledged that the statutory mandatory minimum for the possession charge was

      *
        After examining the briefs and appellate record, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
ten years and the maximum term was life imprisonment. He further acknowledged

that the final calculation of his sentence made by the court might be different from

other calculations made by himself or others, but nonetheless agreed to waive his

right to appeal the sentence except where the sentence was above the mandatory

maximum penalty or above the high end of the Guidelines range as determined by the

court.

         The Presentence Investigation Report calculated a Guidelines sentence range

of 188 to 235 months, which the district court accepted. At sentencing, Larsen

argued that his criminal history was overrepresented and requested the ten year

mandatory minimum. The court denied the request citing Larsen’s criminal history

and weapons charges that were dismissed by the government, and sentenced him to

188 month’s imprisonment—the low end of the Guidelines range and below the

statutory maximum of life imprisonment.

         Despite the waiver, Larsen has filed a notice of appeal to challenge “[w]hether

the Sentencing Guidelines were properly calculated, and . . . [w]hether the sentence

was reasonable.” Dktg. Stmt. at 4. The government has moved to enforce the appeal

waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam).

         In response to the motion to enforce, Larsen’s counsel says that there is no

reason to deny the government’s motion. This court gave Larsen an opportunity to

file a pro se response to the motion to enforce. There has been no response.



                                             2
      We have reviewed the motion to enforce and the record and conclude that

Larsen’s proposed appeal falls within the scope of the appeal waiver, that he

knowingly and voluntarily waived his appellate rights, and that enforcing the waiver

would not result in a miscarriage of justice. See id. at 1325 (describing the factors to

consider when determining whether to enforce an appellate waiver).

      We grant the motion to enforce the appeal waiver and dismiss the appeal.


                                            Entered for the Court
                                            Per Curiam




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