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.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McHUGH , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on th e government’s motion to enforce the appeal waiver in Kevin Glenn Pe tty’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 governme nt property, in violation of 18 U.S.C. § 641. As part of his plea agreemen t, he waived his right to appeal his conviction and any sentence, unless the sentence impos ed 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel.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 

### March 13, 2020 Christopher M. Wolpert Clerk of Court2 entering his plea knowingly and voluntarily a nd that he understood its consequences, including the possible sentences and appeal wa iver. At the change of plea hearing, the district court reminded him of the po ssible 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 que stions and its observations of his demeanor during the hearing, the court accepted Petty’s plea as having been knowi ngly and voluntarily entered. It then sentenced him to 24 m onths’ imprisonment, which was the minimum sentence in the applicable gui delines range. Despite his a ppeal waiver and the fact that his sentence was below the statutory ma ximum, 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 appella te 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 c ounsel stated that Petty has no non-frivolous argu ment against enforcement of his appeal waiver. We gave Petty an opportunity to file a pro se response to th e motion to enforce, but he has not done so. We construe the counsel ed 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 with in the scope of the waiver, and that enforcement of the waiver would not re sult in a miscarriage of justice. See United3 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