FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        October 18, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 17-4099
                                                 (D.C. No. 2:16-CR-00494-TS-2)
TODD GRAVES,                                                (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

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

appeal waiver contained in defendant Todd Graves’s plea agreement. Graves pleaded

guilty to being a felon in possession of a firearm. Pursuant to the plea agreement, he

waived his right to appeal his conviction or sentence, provided his sentence was

within the statutory maximum and not above the advisory guideline range determined

by the district court to apply. Graves’s sentence was below the statutory maximum

and within the advisory guidelines range. Nevertheless, he filed a notice of appeal.


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
      The government filed a motion to enforce the plea agreement pursuant to

United States v. Hahn, 

, 1328 (10th Cir. 2004) (en banc) (per curiam).

In response, Graves’s counsel did not provide any reason why the appeal waiver

should not be enforced. This court gave Graves an opportunity to file a pro se

response to the motion to enforce, but he has not done so.

      We have reviewed the motion and the record, and we conclude that Graves’s

proposed appeal falls within the scope of the appeal waiver and that nothing in the

record indicates that he did not knowingly and voluntarily waive his appellate rights

or that enforcing the waiver would result in a miscarriage of justice. See 

(describing factors this court considers to determine whether to enforce an appeal

waiver).

      Accordingly, we grant the motion to enforce the appeal waiver and dismiss the

appeal.


                                           Entered for the Court
                                           Per Curiam




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