UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MONTGOMERY CARL AKERS, Defendant - Appellant. No. 16-3171 (D.C. Nos. 2:04-CR-2089-KHV-1 and 2:09-CV-02206-KHV) (D. Kan.)

ORDER

Before BRISCOE , BACHARACH , and PHILLIPS , Circuit Judges.

This matter is before the court on Ak ers’ Petition for Rehearing or in the Alternative Petition for Rehear ing En Banc. Upon consider ation, panel rehearing is granted in part and is limited to the revisions made in th e attached revised order and judgment. In addition, the petition for en banc c onsideration was circulated to all the judges of the court who are in regular active service and who are not recused. As no FILED United States Court of Appeals Tenth Circuit 

### November 1, 2016
Elisabeth A. Shumaker Clerk of Court- 2 - member of the original panel and no judge in regular active servi ce requested that the court be polled, the request for en banc reconsideration is denied.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkUNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MONTGOMERY CARL AKERS, Defendant - Appellant. No. 16-3171 (D.C. Nos. 2:04-CR-20089-KHV-1 and 2:09-CV-02206-KHV) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , BACHARACH , and PHILLIPS , Circuit Judges.

This matter is before the court on the government’s motion to enforce the appeal waiver contained in defendant M ontgomery Carl Akers’ plea agreement. Akers filed a response and a motion to di smiss the government’s motion, which he contends is untimely and fails to comply with the court’ s rules. We deny Akers’ motion to dismiss the government’s motion. We grant the government’s motion to enforce Akers’ appeal waiv er and dismiss the appeal.

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y 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 

### August 30, 2016
Elisabeth A. Shumaker Clerk of Court- 2 - Akers first contends that the government ’s motion to enforce his appeal waiver is untimely. A motion to enforce “must be fi led within 20 days after: (i) the district court’s notice, pursuant to 10th Cir. R. 11.1, that the record is co mplete, or; (ii) the district court’s notice that it is transmitting the record pur suant to 10th Cir. R. 11.2.” 10th Cir. R. 27.3(A)(3)(b). The district c ourt noticed its transm ission of the record on June 23, 2016. The government filed its motion to enforce on July 13, 2016. The government’s motion is timely. Akers also maintains that the government’s motion lacks a certificate of service. But the motion states that it “was electronically filed on July 13, 2016, with the Clerk of the Court by using the ECF sy stem, which will send a copy of the Notice of Docket Activity to all ECF system particip ants as of the time of the filing, and a copy was sent via U.S. Mail to : Mr. Montgomery C. Akers. ” Mot. to Enforce at 14. Finally, Akers contends that the gove rnment’s motion should be dismissed based on its failure to comply with this court’s rules. A motion to enforce “must include copies of the plea agreement and copies of tr anscripts for both the plea hearing and the sentencing hear ing.” 10th Cir. R. 27.3(A)(2 )(b). Akers notes that the government filed with its mo tion the transcript from the fi nal sentencing hearing held on November 20, 2006, but did not atta ch the transcripts from the previous sentencing proceedings held on July 18 and July 20, 2006. Akers asserts that these tw o additional sentencing transc ripts are “crucial to his arguments to deny the government ’s motion to enforce.” Resp . at 5. But he does not- 3 - indicate what his arguments are or why they require citation to any sentencing transcript other than the tr anscript from the hearing in which the district court imposed his sentence. As we have previous ly noted, “Mr. Akers is no stranger to this court,” United States v. Akers , 377 F. App’x 834, 835 (10t h Cir. 2010), nor is he unfamiliar with the available bases for ch allenging the enforcement of his appeal waiver, see United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Akers has opposed the govern ment’s motions to enforce his appeal waiver on at least five previous occasions. See United States v. Akers , 628 F. App’x 560, 562-63 (10th Cir. 2015); United States v. Akers , Nos. 12-3123 & 12-3130, slip op. at 3-4 (10th Cir. Aug. 20, 2012); Akers , 377 F. App’x 834, 836-37 (10th Cir. 2010); United States v. Akers , 317 F. App’x 798, 8 01-04 (10th Cir. 2009); United States v. Akers , 281 F. App’x 844, 845 (10th Cir. 2008) . Akers’ conclusory assertion fails to demonstrate that he has suffere d any prejudice from the government’s failure to file the entire sentencing-hearing tran script. Consequently, he has provided insufficient grounds for this court to dismiss the governme nt’s motion for failure to comply with the court’s rules. We deny Akers’ motion to dismiss the government’s motion. Akers advances no other argument against enforcement of his appeal waiver. We therefore grant the government’s motion to enforce and dismi ss the appeal. We deny Akers’ application to pr oceed on appeal without prepay ment of fees and costs.- 4 - Akers shall forthwith pa y the full amount of the filing fee to the district court clerk. All other pending motions are dismissed as moot. Entered for the Court Per Curiam