United States v. Burger

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

                            FOR THE TENTH CIRCUIT                             May 3, 2021
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court

       Plaintiff - Appellee,

 v.                                                          No. 20-6197
                                                  (D.C. No. 5:18-CR-00260-SLP-48)
 JAMES BURGER,                                               (W.D. Okla.)

       Defendant - Appellant.

                            ORDER AND JUDGMENT *

Before BACHARACH, PHILLIPS, and EID, Circuit Judges.

      James Burger pled guilty to one count of possession of methamphetamine with

intent to distribute. He was sentenced to 192 months in prison, which was below the

advisory sentencing guidelines range. Although his plea agreement contained a

waiver of his appellate rights, he filed a notice of appeal. The government then filed

a motion to enforce the appeal waiver. Counsel filed a response to the motion

pursuant to Anders v. California, 

386 U.S. 738

(1967), stating his belief that any

argument against enforcement of the plea agreement is frivolous and that the appeal

waiver is enforceable. Counsel also filed a motion to withdraw as counsel of record

         This order and judgment is not binding precedent, except under the doctrines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.
for Mr. Burger. We gave Mr. Burger the opportunity to file a pro se response to

show why the appeal waiver should not be enforced. His response was due on

April 13, 2021, but to date he has not filed a response.

       We will enforce an appeal waiver if (1) “the disputed appeal falls within” the

waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate

rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.”

United States v. Hahn, 

359 F.3d 1315

, 1325 (10th Cir. 2004) (en banc) (per curiam). The

government argues that all three of these conditions are met in this case.

       Consistent with our obligation under Anders, we conducted an independent

review of the proceedings. 

See 386 U.S. at 744

. After doing so, we agree with the

government that Mr. Burger’s appeal waiver should be enforced under Hahn. We

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

counsel’s motion to withdraw.

                                              Entered for the Court
                                              Per Curiam


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