UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUSTIN RICHARDSON, Defendant - Appellant. No. 15-3145 (D.C. No. 2:12-CR-20131-CM-2) (D. Kan.)

ORDER AND JUDGMENT *

Before MORITZ , EBEL , and O’BRIEN , Circuit Judges.
Pursuant to a plea agreement with a broad appeal waiver, Justin Richardson pleaded guilty to one count of conspiracy to distribute me thamphetamine, in violation of 21 U.S.C. § 846. The district court sentenced him to 262 months’ imprisonment, which was at the low end of the advisory guideline range of 262 to 327 months. Despite his appeal waiver, Mr. Richardson filed a notice of appeal. The government

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y 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 

### September 28, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en ba nc) (per curiam).
In Hahn , 359 F.3d at 1325, we held that we would enforce appeal waivers as long as three conditions were met: (1) the matter on appeal “falls within the scope of the waiver”; (2) the defendant-appellant “knowingly and voluntarily waived his appellate rights”; and (3) enfo rcing the waiver will not “r esult in a miscarriage of justice.” Counsel filed a response stating his belief that ther e are no meritorious grounds to oppose the motion to enforce. We then gave Mr. Richardson an opportunity to file a pro se response to the motion. 1 In his pro se response, Mr. Richardson asserts that his appellate waiver is unenforceable because the government brea ched the plea agreement. We have explained that “an appellate waiver is not enforceable if the Gove rnment breaches its obligations under [a] plea agreement.” United States v. Rodriguez-Rivera , 518 F.3d 1208, 1212 (10t h Cir. 2008). Mr. Richardson argues that the governme nt “unilaterally determined” that he was in breach of the agr eement and “then advocated fo r several enhancements, in direct violation of the terms of the plea agreement.” Pro se Resp. at 2. He contends that “[t]he Court ne ver made an explicit finding th at Richardson breached the plea

1 We allowed Mr. Richardson this opport unity because it appeared as though counsel was invoking the process identified in Anders v. California , 386 U.S. 738 (1967), by stating that there was no mer itorious basis to oppose the motion to enforce. Under Anders , if an attorney files a brief stating that th e appeal is frivolous, the defendant is then given an opport unity to file a pro se response. Id . at 744.- 3 - agreement.” Id . But he “concedes that the Govern ment would have been relieved of its obligation[s] under the terms of the pl ea had the Court made a finding that he breached the plea.” Id

. Mr. Richardson relies on a statement made by the district court at his sentencing hearing in support of his contenti on that the district court never made an explicit finding that he breached the plea agreement. The district court was discussing what had previous ly happened at the heari ng on Mr. Richardson’s motion to withdraw his guilty plea and stated: “T here were statements and arguments during your hearing that indicated the government believed that you had breached your plea agreement, and the court noted th at for the record.” Mot. to Enforce, Attach. B at 2. We agree with Mr. Richardson that the district court’s statement summarizing what happened at the prior hearing does no t constitute a finding that he breached the plea agreement. But we cannot agree with Mr. Richardson’s contention that “the record is devoid of any indication that the Court made such a finding.” Pro se Resp.
at 2. At the hearing on the motion to wit hdraw his guilty plea, the government argued that Mr. Richardson had breached the terms of paragraph three in the plea agreement by filing a motion for a downward variance. The dist rict court agreed, stating: “the court is going to find that the plea agreemen t was breached as it relates to Paragraph 3.” R., Doc. 107 at 45. The court reviewed the language in paragraph three, which states that “d efendant will not request a se ntence below the low end of- 4 - the guideline range.” Id . at 46. And the court expl ained that “Defendant has requested a variance of his se ntence, and as such, that reque st is in violation of the section[]. So the court is going to find, ag ain, the plea agreemen t was breached in the manner now set out on the record.” Id . The court also issued a minute order that states: “The court finds that the plea ag reement was breached as to paragraph 3.” R., Doc. 80. The record reflects that the district court did ma ke an express finding that Mr. Richardson had breached the plea agreement. As he c oncedes, this relieved the government of its obligations under the terms of the plea agreement. See Pro se Resp. at 2; see also Mot. to Enforce, Atta ch. C at ¶5 (explaining that if the court finds that the defendant has breach ed the plea agreemen t, then the governm ent is no longer bound by its obligations in paragraph five). The government did not breach the pl ea agreement and therefore the appeal waiver is enforceable. Mr. Richardson doe s not offer any other basis to oppose the government’s motion to en force the appeal waiver. 2 Accordingly, we grant the government’s motion and di smiss this appeal.

Entered for the Court Per Curiam

2 Mr. Richardson did note his belief that his counsel had provided ineffective assistance, but recognized th at this court does not cons ider such issues on direct appeal, see United States v. Porter , 405 F.3d 1136, 1144 (10th Cir. 2005) (“[A] defendant must generally raise claims of ineffective assistance of counsel in a collateral proceeding, not on direct review.”).