United States v. Nash , 543 F. App'x 875 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 15, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-3217
(D.C. No. 5:12-CR-40117-JAR-1)
ADRIAN LADEAN NASH, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, HARTZ, and GORSUCH, Circuit Judges.
Adrian L. Nash entered a guilty plea to possession of a firearm by an unlawful
user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). The district
court sentenced Mr. Nash to 24 months’ imprisonment, at the low end of the advisory
guidelines range. As part of his plea agreement, Mr. Nash waived his right to
challenge his conviction or sentence on appeal. In spite of this waiver, Mr. Nash has
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
filed an appeal challenging his conviction and sentence. The government has moved
to enforce the appeal waiver in the plea agreement pursuant to United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
Under Hahn, 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. 1325. In his response to the motion to enforce,
Mr. Nash appears to challenge only the scope of the waiver, asserting that he did not
waive his “‘Natural Rights,’” and that he “can raise for the first time on appeal [that]
the district court lacked jurisdiction over the ‘subject matter’.” Resp. at 1. His
argument is without merit.
In his plea agreement, Mr. Nash “waive[d] any right to appeal or collaterally
attack any matter in connection with [his] prosecution, [his] conviction, and the
components of [his] sentence.” R. Doc. 53 at 6 (emphasis added). In his response,
he contends that his indictment was defective and the district court lacked subject
matter jurisdiction over his case. These are challenges to his prosecution and
conviction and therefore fall within the scope of the broad waiver he signed. He does
not assert that his waiver was not knowing and voluntary or that enforcement of the
waiver would be a miscarriage of justice, and we do not see any meritorious basis for
such assertions.
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Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
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