UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES WAYNE LUCE, Defendant - Appellant. No. 22-8047 (D.C. No. 1:21-CR-00013-ABJ-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , KELLY , and McHUGH , Circuit Judges.

________________ _________________ This matter is before the court on th e government’s motion to enforce the appeal waiver in James Wayne Lu ce’s plea agreement pursuant to United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam ). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal. Mr. Luce pleaded guilty to production of child pornography. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C ), the parties agreed that a sentence of no more than 240 months’ imprisonment would be appropriate. As part of his plea agreement, Mr. Luce waived his right to appeal his c onviction and sentence, unless

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 2, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-8047 Document: 010110762183 Date Filed: 11/02/2022 Page: 12 the government appealed the sentence or th e court sentenced him based on an upward departure from or variance above the applicable guidelines range. 1 Mr. Luce acknowledged in the plea agreement that he was entering his plea knowingly and voluntarily and that he understood its c onsequences, including the sentences that could be imposed and that he was waiving hi s appellate rights. At the change of plea hearing, the district court reminded him of the possible sentences and broad appeal waiver, and he confirmed that he underst ood and that he wanted to plead guilty. Based on Mr. Luce’s responses to the court’ s questions and its observations of his demeanor during the hearing, the court ac cepted his plea as having been knowingly and voluntarily entered. The court then sentenced Mr. Luce to 240 months. The sentence is below the guidelines range, is within the range the parties agreed was appropriate, and the government did not appeal it. Despite the fact none of the excep tions to the appeal waiver applied, Mr. Luce fi led a notice of appeal. In ruling on a motion to enforce, we c onsider whether the appeal falls within the scope of the appeal waiver, whethe r the defendant know ingly and voluntarily waived his right to appeal, and “whether enforcing the waiver would result in a miscarriage of justice.” Hahn , 359 F.3d at 1325.

1 Mr. Luce also waived his right to co llaterally attack hi s sentence, but he reserved the right to raise a claim that he was prejudiced by ineffective assistance of counsel or prosecutorial misconduct, subjec t to the requirements of 28 U.S.C. § 2255 or other applicable law. He also reserv ed the right to seek a sentencing reduction under 18 U.S.C. § 3582(c). Appellate Case: 22-8047 Document: 010110762183 Date Filed: 11/02/2022 Page: 23 In response to the government’s motion to enforce, Mr. Luce, through counsel, indicated that he “does not object to the en forcement of the waiver and dismissal of his appeal.” Resp. to Mot. to Enforce at 1. By doing so, he con ceded that his waiver was knowing and voluntary, that his appeal fa lls within the scope of the waiver, and that enforcement of the waiv er would not result in a miscarriage of justice. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (court need not address uncontested Hahn factors). Accordingly, we grant the government’s motion to enforce th e appeal waiver and dismiss the appeal.

Entered for the Court Per Curiam Appellate Case: 22-8047 Document: 010110762183 Date Filed: 11/02/2022 Page: 3