UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

TYRONE HENRY TANNER, 

 Defendant-Appellant. 

No. 13-6183 

(D.C. No. 5:12-CR-00065-D-4) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges. 

 

 After entering into a plea agreement that included a waiver of his right to 

appeal, defendant Tyrone Henry Tanner pleaded guilty to one count of conspiring to 

possess with intent to distribute, and to distribute, several controlled substances and 

one count of money laundering. By stipulation the agreement attributed 2,999 

kilograms of marijuana-equivalent to Mr. Tanner in connection with the first count 

 

* This panel has determined that oral argument 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

February 27, 2014

Elisabeth A. Shumaker 

Clerk of Court
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and $6,800 in laundered drug proceeds in connection with the second. The district 

court sentenced Mr. Tanner to 135 months’ imprisonment on each count, to run 

concurrently, a term within the applicable guideline range of 135 to 168 months 

determined by the court. Mr. Tanner then filed this appeal, despite the broad waiver 

of appeal rights included in his plea agreement. The government has filed a motion 

to enforce that waiver. We grant the motion and dismiss the appeal. 

The government’s motion explains in facially sufficient fashion that this 

appeal falls within Mr. Tanner’s appeal waiver, that the waiver was knowing and 

voluntary, and that there are no circumstances to suggest a miscarriage of justice to 

excuse the waiver. See generally United States v. Hahn, 359 F.3d 1315, 1325 

(10th Cir. 2004) (en banc) (per curiam) (summarizing three components of court’s 

inquiry when enforcing appeal waiver). In response, after noting two sentencing 

objections urged by his client, counsel for Mr. Tanner conceded there were no 

grounds upon which to oppose application of the appeal waiver and moved to 

withdraw under Anders v. California, 386 U.S. 738 (1967). We gave Mr. Tanner an 

opportunity to reply to counsel’s filing, but (despite a lengthy extension) the deadline 

for that response has passed without anything forthcoming from Mr. Tanner. 

When appellate counsel moves to withdraw under Anders, we must examine 

the proceedings and determine whether the appeal is “wholly frivolous.” Id. at 744. 

In the present context, that means we must assess whether there is a non-frivolous 
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argument to be made in opposition to the government’s motion to enforce the appeal 

waiver. We agree with counsel that there is not. 

The plea agreement states that defendant “knowingly and voluntarily waives 

his right to . . . [a]ppeal . . . his guilty plea, sentence and restitution imposed, and any 

other aspect of his conviction.” Dist. Ct. doc. 164 at 9. Specifically as to sentence, 

the agreement states that he waives his right to appeal “his sentence as imposed by 

the Court and the manner in which the sentence is determined, provided the sentence 

is within or below the advisory guideline range determined by the Court to apply to 

this case.” Id. at 10. The two sentencing objections identified by counsel, involving 

the denial of safety-valve adjustment under U.S.S.G. § 5C1.2(a) and the imposition 

of a firearm enhancement under U.S.S.G. § 2D1.1(b)(1), fall squarely within the 

waiver. And since these only involve sentence-guideline computations, even if 

erroneous they would not qualify as miscarriages of justice to excuse the waiver. 

See United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (“To allow alleged 

errors in computing a defendant’s sentence to render [an appeal] waiver unlawful 

would nullify the waiver based on the very sort of claim it was intended to waive.”); 

see also United States v. Polly, 630 F.3d 991, 1001-02 (10th Cir. 2011) (following 

Smith). 

Finally, nothing in the record undercuts the representations of a knowing and 

voluntary waiver in the agreement. On the contrary, the plea colloquy confirmed 

those representations. 
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Because it appears it would be wholly frivolous for Mr. Tanner to oppose the 

government’s motion to enforce his appeal waiver, we grant that motion as well as 

counsel’s motion to withdraw. The appeal is dismissed. 

 Entered for the Court 

 Per Curiam