UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

RODNEY PRICE, 

 Defendant - Appellant.

No. 20-1330

(D.C. No. 1:16-CR-00352-MSK-GPG-1)

(D. Colo.)

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ORDER AND JUDGMENT*

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Before BACHARACH, McHUGH, and CARSON, Circuit Judges.

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Rodney Price pleaded guilty to possessing a firearm after having been 

convicted of a felony. The district court sentenced him to serve fifty-five months in 

prison, a term falling within the advisory Sentencing Guidelines range of fifty-one to 

sixty-three months. The plea agreement included a broad waiver of Mr. Price’s

appellate rights. Yet he has filed a notice of appeal. The government now moves to 

enforce the appeal waiver and to dismiss this appeal.

We will enforce an appeal waiver if (1) “the disputed appeal falls within” the 

waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate 

* This order and judgment is not binding precedent, except under the doctrines 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

April 19, 2021

Christopher M. Wolpert

Clerk of Court
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rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.” 

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). 

The government argues that all three of these circumstances exist in this case.

Mr. Price’s defense counsel responded to the government’s motion, asserting 

that any opposition to the motion would be frivolous and moving to withdraw under 

Anders v. California, 386 U.S. 738 (1967). Counsel did, however, identify two 

potential issues. First, counsel says that Mr. Price believes the government breached 

the plea agreement by failing to fully support his motion for a downward variance. 

And second, counsel tells us that Mr. Price’s allegations may “raise the specter of 

prosecutorial misconduct.” Resp. at 12. We sent a copy of counsel’s response to

Mr. Price and gave him a chance to file his own response. The deadline for Mr. Price 

to respond has passed, and we have not received anything from him. 

After reviewing the record, we conclude that Mr. Price’s appeal waiver should 

be enforced under Hahn. In other words, the appeal falls within the scope of 

Mr. Price’s waiver, his waiver was knowing and voluntary, and enforcing the waiver 

would not result in a miscarriage of justice. 

The prosecutor did not breach the plea agreement, conduct that would render 

the appeal waiver unenforceable, see United States v. Doe, 865 F.3d 1295, 1301 

(10th Cir. 2017). In the plea agreement, the prosecutor agreed to support Mr. Price’s 

motion for a downward variance and to recommend a twenty-seven-month prison 

sentence. These promises are listed in the presentence report. When a presentence 

report contains the prosecutor’s recommendations, the prosecutor need not “allocute 
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in favor of specific adjustments in the defendant’s sentence.” United States v. Smith, 

140 F.3d 1325, 1327 (10th Cir. 1998). It is enough that “the prosecutor does not 

allocute against an agreed-upon adjustment.” Id. At the sentencing hearing in this 

case, the prosecutor did not advocate against the sentence that he had agreed to 

recommend. Quite the contrary, he explained why he thought a twenty-seven-month 

sentence “would result in justice in the big picture.” R. vol. 3 at 58. 

To the extent Mr. Price wishes to pursue a claim of prosecutorial misconduct, 

he may not do so in a direct appeal. Mr. Price waived “the right to appeal any matter 

in connection with” his case. Id. vol. 1 at 15. This waiver contained three 

exceptions, but as defense counsel points out, none of them apply. And so the waiver 

forecloses any prosecutorial-misconduct claim on direct appeal. Although 

Mr. Price’s plea agreement required him to waive his right to collaterally attack his 

conviction or sentence, the agreement contains an exception preserving his right to 

pursue a collateral attack on the ground that he “was prejudiced by prosecutorial 

misconduct.” Id. at 16. Mr. Price therefore must raise any prosecutorial-misconduct

claim in collateral proceedings rather than in a direct appeal.

We grant the government’s motion to enforce the appeal waiver, grant defense 

counsel’s motion to withdraw, and dismiss this appeal.

Entered for the Court

Per Curiam