UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

KEVIN GLENN PETTY, 

 Defendant - Appellant. 

No. 20-5007 

(D.C. No. 4:19-CR-00087-JED-1) 

(N.D. Okla.) 

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ORDER AND JUDGMENT*

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Before MATHESON, McHUGH, and CARSON, Circuit Judges. 

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

appeal waiver in Kevin Glenn Petty’s plea agreement pursuant to United States v. 

Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Exercising 

jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal. 

Petty pleaded guilty to theft of government property, in violation of 18 U.S.C. 

§ 641. As part of his plea agreement, he waived his right to appeal his conviction and 

any sentence, unless the sentence imposed exceeded the statutory maximum of 

120 months’ imprisonment. The plea agreement acknowledged that Petty was 

 * This order and judgment is not binding precedent, except under the doctrines 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

March 13, 2020

Christopher M. Wolpert 

Clerk of Court
2 

entering his plea knowingly and voluntarily and that he understood its consequences, 

including the possible sentences and appeal waiver. 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 his 

responses to the court’s questions and its observations of his demeanor during the 

hearing, the court accepted Petty’s plea as having been knowingly and voluntarily 

entered. It then sentenced him to 24 months’ imprisonment, which was the minimum 

sentence in the applicable guidelines range. Despite his appeal waiver and the fact 

that his sentence was below the statutory maximum, Petty filed a notice of appeal. 

In ruling on a motion to enforce, 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.” Hahn, 359 F.3d at 

1325. 

In response to the government’s motion to enforce, Petty’s counsel stated that 

Petty has no non-frivolous argument against enforcement of his appeal waiver. We 

gave Petty an opportunity to file a pro se response to the motion to enforce, but he 

has not done so. We construe the counseled response and Petty’s failure to file a 

pro se objection to the motion to enforce as a concession 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 
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States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting that court need not 

address uncontested Hahn factor). 

Accordingly, we grant the government’s motion to enforce the appeal waiver 

and dismiss the appeal.

Entered for the Court 

Per Curiam