UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

JAMES R. SWITZER, 

 Defendant-Appellant. 

No. 12-1437 

(D.C. No. 1:12-CR-00010-MSK-15) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before O’BRIEN, HOLMES, and MATHESON, Circuit Judges. 

 

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

appeal waiver contained in defendant James R. Switzer’s plea agreement. The 

defendant pleaded guilty to a firearms offense in violation 18 U.S.C. § 922(g). At 

sentencing, the district court determined that the defendant’s total offense level was 

17 and his applicable advisory guidelines sentencing range was 51 to 63 months’ 

 

* 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

March 22, 2013

Elisabeth A. Shumaker 

Clerk of Court
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imprisonment. The district court varied downward and sentenced the defendant to 

40 months’ imprisonment. 

 Pursuant to his plea agreement, 

the defendant knowingly and voluntarily waive[d] the right to appeal 

any matter in connection with [his] prosecution, conviction, or sentence 

unless it meets one of the following three criteria: (1) the sentence 

imposed is above the maximum penalty provided in the statute of 

conviction, (2) the Court, after determining the otherwise applicable 

sentencing guideline range, either departs or varies upwardly, or (3) the 

Court determines that the adjusted offense level is greater than 20 and 

imposes a sentence based upon that offense level determination. 

Attach. 1 to Mot. to Enforce (Plea Agreement) at 2. Except as stated above, the 

defendant also “knowingly and voluntarily waive[d] the right to appeal the manner in 

which the sentence [was] determined.” Id. He reserved his right to appeal or 

otherwise seek relief if “(1) there is an explicitly retroactive change in the applicable 

guidelines or sentencing statute, (2) there is a claim that [he] was denied the effective 

assistance of counsel, or (3) there is a claim of prosecutorial misconduct.” Id. at 3. 

Finally, if the government appealed the sentence imposed, the defendant would be 

released from the waiver. Id. 

The government filed a motion to enforce the plea agreement under United 

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

a motion to enforce a waiver, 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.” Id. at 1325. The defendant’s 
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counsel filed a response stating that he cannot identify any meritorious grounds to 

contest the motion to enforce. We gave the defendant the opportunity to file a pro se 

response, but his deadline has passed, and to date we have not received a response 

from him. 

 Our independent review confirms that the requirements for enforcing the plea 

waiver have been satisfied. Accordingly, we grant the motion to enforce and dismiss 

the appeal. We grant the defendant’s counsel’s motion to file a response one day 

late. 

 Entered for the Court 

 Per Curiam