UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MICHAEL A. SARBER, 

 Defendant - Appellant. 

No. 16-3039 

(D.C. No. 6:05-CR-10137-JTM-1) 

(D. Kan.)

 

ORDER AND JUDGMENT*

 

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

 

 Michael A. Sarber pled guilty to one count of possession with intent to 

distribute more than five grams of methamphetamine in violation of 21 U.S.C. 

§ 841(a). In his plea agreement, Mr. Sarber waived the right to appeal or collaterally 

attack his sentence, provided it was within the applicable sentencing guideline range. 

The district court sentenced him to 188 months in prison, which was at the low end of 

that range, followed by four years of supervised release. 

 *

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is not binding precedent, except under the doctrines of law of the case, res judicata, 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

May 12, 2016

Elisabeth A. Shumaker 

Clerk of Court
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Undeterred by the waiver, Mr. Sarber has filed a direct appeal, two habeas 

petitions, four motions in district court asking the district court to order his federal 

sentence to run concurrently with a 54-month sentence that was imposed earlier in a 

Wisconsin case, and, most recently, this appeal from the district court’s denial of his 

last motion requesting concurrent sentences. The government has moved to enforce 

the waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) 

(per curiam), which sets out the conditions for enforcing appeal waivers, id. at 1325. 

Mr. Sarber did not respond to the government’s motion, despite court orders asking 

him to do so and extending the deadline. We grant the motion and dismiss the 

appeal. 

We have already enforced the waiver once to dismiss Mr. Sarber’s direct 

appeal. See United States v. Sarber, 196 F. App’x 673, 676 (10th Cir. 2006). There, 

we outlined the terms of the plea agreement in detail, analyzed the waiver, and 

determined the Hahn conditions were satisfied—a point Mr. Sarber has never 

contested. Id. at 674-76. We also noted that the plea agreement “clearly set out the 

maximum sentence defendant faced and explained the appellate rights he 

relinquished in exchange for the benefits offered by the government” and that 

Mr. Sarber’s sentence complies with both the agreement’s terms and his 

understanding as expressed at the plea hearing. Id. at 675-76. 

Mr. Sarber now asserts a different sentencing error—namely, that his federal 

and state sentences should run concurrently because the government agreed in the 

plea agreement to make such a recommendation. Our reasoning in Sarber applies 
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equally here. The waiver is valid,1

 and this appeal falls within its scope. See United 

States v. Belcher, No. 15-3208, 2016 WL 722706, at *2 (10th Cir. Feb. 24, 2016) 

(“[W]e have consistently found [challenges to a district court’s decision to run 

federal sentences consecutively to previously imposed state sentences] to be covered 

by general appeal waivers that did not include language specifically addressing the 

consecutive/concurrent nature of the sentence imposed vis à vis a prior state 

sentence.”); cf. Hahn, 359 F.3d at 1328 (enforcing a general appeal waiver to dismiss 

a challenge to the district court’s decision not to impose a concurrent sentence where 

the defendant had a prior federal sentence). 

For these reasons, we grant the government’s motion to enforce and dismiss 

the appeal. Mr. Sarber’s motion to proceed without prepayment of costs or fees is 

granted. Nevertheless, he is required to pay all filing and docketing fees. Only 

prepayment of fees is waived, not the fees themselves. 28 U.S.C. § 1915(a)(1). 

Payment shall be made to the Clerk of the District Court. 

 Entered for the Court 

 Per Curiam 

 1

 In Sarber, we did envision some errors that “could undercut an appeal 

waiver in a non-circular way,” such as a sentence that “deviates from the plea 

agreement’s terms or the defendant’s expressed understanding at the time of his 

plea.” Id. at 675 n.2. But the alleged error is not of this type. Mr. Sarber was well 

aware the court could deviate from the parties’ agreement because the plea agreement 

explicitly stated that “[t]he parties understand this agreement binds the parties only 

and does not bind the Court.” R. Vol. 1 at 55. Likewise, he expressed his 

understanding that the district judge had the sole right to determine what sentence to 

impose, so long as it did not exceed the 40-year maximum. His sentence is not 

contrary to the plea agreement.