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.) 

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ORDER AND JUDGMENT*

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Before HARTZ, KELLY, and McHUGH, Circuit Judges. 

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This matter is before the court on the government’s motion to enforce the 

appeal waiver in James Wayne Luce’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 conviction and sentence, unless 

* This order and judgment is not binding precedent, except under the doctrines 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 

United States Court of Appeals 

Tenth Circuit 

November 2, 2022

Christopher M. Wolpert 

Clerk of Court

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the government appealed the sentence or the 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 consequences, including the sentences that 

could be imposed and that he was waiving his 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 understood 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 accepted 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 exceptions to the appeal 

waiver applied, Mr. Luce filed a notice of appeal. 

In ruling on a motion to enforce, we consider whether the appeal falls within 

the scope of the appeal waiver, whether the defendant knowingly 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 collaterally attack his sentence, but he 

reserved the right to raise a claim that he was prejudiced by ineffective assistance of 

counsel or prosecutorial misconduct, subject to the requirements of 28 U.S.C. § 2255 

or other applicable law. He also reserved the right to seek a sentencing reduction 

under 18 U.S.C. § 3582(c). 

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In response to the government’s motion to enforce, Mr. Luce, through counsel, 

indicated that he “does not object to the enforcement of the waiver and dismissal of 

his appeal.” Resp. to Mot. to Enforce at 1. By doing so, he conceded that his waiver 

was knowing and voluntary, that his appeal falls within the scope of the waiver, and 

that enforcement of the waiver 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 the appeal waiver 

and dismiss the appeal. 

Entered for the Court 

Per Curiam 

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