FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 13, 2018

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Elisabeth A. Shumaker

Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, v. No. 18-1341

(D.C. No. 1:17-CR-00417-RBJ-2) STEVEN DYKES, a/k/a Steve Dykes, (D. Colo.) a/k/a Steven Day,

Defendant - Appellant.

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ORDER AND JUDGMENT*

_________________________________ Before MATHESON, KELLY, and McHUGH, Circuit Judges.

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Steven Dykes pleaded guilty to one count of conspiracy to commit mail and wire fraud and one count of money laundering. He was sentenced to serve 108 months in prison. Although his plea agreement contained a waiver of his appellate rights, he filed a notice of appeal. The government has moved to enforce the appeal waiver in the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

Under Hahn, 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 government asserts that all of the Hahn conditions have been satisfied because: (1) Mr. Dykes’ appeal is within the scope of the appeal waiver; (2) he knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver would not result in a miscarriage of justice. In response to the government’s motion, Mr. Dykes concedes that his appeal waiver is enforceable under the standards set forth in Hahn, and he agrees that his appeal should be dismissed.

Accordingly, we grant the government’s motion to enforce the appeal waiver and dismiss the appeal. This dismissal does not affect Mr. Dykes’ right to pursue post-conviction relief on the grounds permitted in his plea agreement.

Entered for the Court

Per Curiam

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