United States v. Hanahan , 605 F. App'x 776 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 7, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1072
(D.C. No. 1:14-CR-00269-RM-1)
KYLE A. HANAHAN, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before KELLY, HARTZ, and McHUGH, Circuit Judges.
Following his acceptance of a plea agreement that included a waiver of his
right to appeal, Kyle A. Hanahan pleaded guilty to transportation of child
pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1). He was sentenced
to 108 months’ imprisonment. Despite his waiver, he filed an appeal. The
government has moved to enforce Hanahan’s appeal waiver. See United States v.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
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.
Hanahan’s counsel has filed a response in which Hanahan “concedes that the appeal
waiver contained in his plea agreement is enforceable” under Hahn. Aplt. Resp. at 1.
Our independent review confirms that the proposed issues for appeal fall
within the scope of the waiver or raise a claim of ineffective assistance of counsel
that Hanahan may not pursue on direct appeal, see United States v. Edgar, 348 F.3d
867, 869 (10th Cir. 2003) (stating rule, with “rare exception” not applicable here, that
ineffective-assistance claims must be brought in a collateral proceeding). The plea
agreement clearly sets forth the appeal waiver and states that it was knowing and
voluntary, and the district court discussed the waiver and confirmed Hanahan’s
understanding of it during his change of plea hearing. Moreover, there is no evidence
contradicting Hanahan’s knowing and voluntary acceptance of the waiver. Finally,
there is no indication that enforcing the waiver would result in a miscarriage of
justice as defined in Hahn, 359 F.3d at 1327.
The motion to enforce is granted and this matter is dismissed.
Entered for the Court
Per Curiam
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