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

                           FOR THE TENTH CIRCUIT                       November 1, 2016

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 16-3171
                                              (D.C. Nos. 2:04-CR-2089-KHV-1 and
MONTGOMERY CARL AKERS,                               2:09-CV-02206-KHV)
                                                            (D. Kan.)
             Defendant - Appellant.


                                       ORDER


Before BRISCOE, BACHARACH, and PHILLIPS, Circuit Judges.


      This matter is before the court on Akers’ Petition for Rehearing or in the

Alternative Petition for Rehearing En Banc. Upon consideration, panel rehearing is

granted in part and is limited to the revisions made in the attached revised order and

judgment.

      In addition, the petition for en banc consideration was circulated to all the

judges of the court who are in regular active service and who are not recused. As no
member of the original panel and no judge in regular active service requested that the

court be polled, the request for en banc reconsideration is denied.


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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

                           FOR THE TENTH CIRCUIT                      August 30, 2016

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 16-3171
                                             (D.C. Nos. 2:04-CR-20089-KHV-1 and
MONTGOMERY CARL AKERS,                              2:09-CV-02206-KHV)
                                                           (D. Kan.)
             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, BACHARACH, and PHILLIPS, 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.

Akers filed a response and a motion to dismiss the government’s motion, which he

contends is untimely and fails to comply with the court’s rules. We deny Akers’

motion to dismiss the government’s motion. We grant the government’s motion to

enforce Akers’ appeal waiver and dismiss the appeal.


*
       This panel has determined 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.
       Akers first contends that the government’s motion to enforce his appeal waiver

is untimely. A motion to enforce “must be filed within 20 days after: (i) the district

court’s notice, pursuant to 10th Cir. R. 11.1, that the record is complete, or; (ii) the

district court’s notice that it is transmitting the record pursuant to 10th Cir. R. 11.2.”

10th Cir. R. 27.3(A)(3)(b). The district court noticed its transmission of the record

on June 23, 2016. The government filed its motion to enforce on July 13, 2016. The

government’s motion is timely.

       Akers also maintains that the government’s motion lacks a certificate of

service. But the motion states that it “was electronically filed on July 13, 2016, with

the Clerk of the Court by using the ECF system, which will send a copy of the Notice

of Docket Activity to all ECF system participants as of the time of the filing, and a

copy was sent via U.S. Mail to: Mr. Montgomery C. Akers.” Mot. to Enforce at 14.

       Finally, Akers contends that the government’s motion should be dismissed

based on its failure to comply with this court’s rules. A motion to enforce “must

include copies of the plea agreement and copies of transcripts for both the plea

hearing and the sentencing hearing.” 10th Cir. R. 27.3(A)(2)(b). Akers notes that the

government filed with its motion the transcript from the final sentencing hearing held

on November 20, 2006, but did not attach the transcripts from the previous

sentencing proceedings held on July 18 and July 20, 2006.

       Akers asserts that these two additional sentencing transcripts are “crucial to his

arguments to deny the government’s motion to enforce.” Resp. at 5. But he does not


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indicate what his arguments are or why they require citation to any sentencing

transcript other than the transcript from the hearing in which the district court

imposed his sentence. As we have previously noted, “Mr. Akers is no stranger to this

court,” United States v. Akers, 377 F. App’x 834, 835 (10th Cir. 2010), nor is he

unfamiliar with the available bases for challenging the enforcement of his appeal

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

(per curiam). Akers has opposed the government’s motions to enforce his appeal

waiver on at least five previous occasions. See United States v. Akers, 628 F. App’x

560, 562-63 (10th Cir. 2015); United States v. Akers, Nos. 12-3123 & 12-3130, slip

op. at 3-4 (10th Cir. Aug. 20, 2012); Akers, 377 F. App’x 834, 836-37 (10th Cir.

2010); United States v. Akers, 317 F. App’x 798, 801-04 (10th Cir. 2009); United

States v. Akers, 281 F. App’x 844, 845 (10th Cir. 2008). Akers’ conclusory assertion

fails to demonstrate that he has suffered any prejudice from the government’s failure

to file the entire sentencing-hearing transcript. Consequently, he has provided

insufficient grounds for this court to dismiss the government’s motion for failure to

comply with the court’s rules. We deny Akers’ motion to dismiss the government’s

motion.

      Akers advances no other argument against enforcement of his appeal waiver.

We therefore grant the government’s motion to enforce and dismiss the appeal. We

deny Akers’ application to proceed on appeal without prepayment of fees and costs.




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Akers shall forthwith pay the full amount of the filing fee to the district court clerk.

All other pending motions are dismissed as moot.

                                                 Entered for the Court
                                                 Per Curiam




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