06-3192 -- U.S. v. Hopkins -- 10/04/2006

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JASON HOPKINS,

Defendant-Appellant.

No. 06-3192

(D.C. No. 05-CR-10147-01-MLB)

(D. Kan.)

ORDER AND JUDGMENT^(*)

Before HENRY, LUCERO, and MURPHY, Circuit Judges.

The government has filed a motion to enforce the plea agreement with defendant Jason Hopkins. In the agreement, Mr. Hopkins waived his right to appeal his conviction and sentence on the charge of possession of pseudoephedrine with intent to manufacture methamphetamine. Mr. Hopkins' attorney responded, conceding that the appeal waiver is enforceable. Counsel indicated his intent to file an Anders⁽¹⁾ brief, should the appeal proceed. Consequently, this court afforded Mr. Hopkins an opportunity to file an opposition to the government's enforcement motion. He did not respond.

This court will enforce a criminal defendant's waiver of his right to appeal so long as the following three elements are satisfied: (1) "the disputed appeal falls within the scope of the waiver of appellate rights," (2) the defendant's waiver of his appellate rights was knowing and voluntary, and (3) enforcing the waiver will not result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). We have carefully reviewed the plea agreement and the transcript of the hearing at which Mr. Hopkins entered his guilty plea. We conclude that the Hahn factors have been satisfied.

Accordingly, we GRANT the government's motion to enforce the plea agreement and DISMISS the appeal. The mandate shall issue forthwith.

ENTERED FOR THE COURT

PER CURIAM

FOOTNOTES
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^*. 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

^1. Anders v. California, 386 U.S. 738 (1967).

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