United States of America v. James Burger

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES BURGER,
Defendant - Appellant.
No. 20-6197
(D.C. No. 5:18-CR-00260-SLP-48)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
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James Burger pled guilty to one count of possession of methamphetamine with
intent to distribute. He was sentenced to 192 months in prison, which was below the
advisory sentencing guidelines range. Although his plea agreement contained a
waiver of his appellate rights, he filed a notice of appeal. The government then filed
a motion to enforce the appeal waiver. Counsel filed a response to the motion
pursuant to Anders v. California, 386 U.S. 738 (1967), stating his belief that any
argument against enforcement of the plea agreement is frivolous and that the appeal
waiver is enforceable. Counsel also filed a motion to withdraw as counsel of record
* This order and judgment is not binding precedent, except under the doctrines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 3, 2021
Christopher M. Wolpert
Clerk of Court
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for Mr. Burger. We gave Mr. Burger the opportunity to file a pro se response to
show why the appeal waiver should not be enforced. His response was due on
April 13, 2021, but to date he has not filed a response.
We will enforce an appeal waiver if (1) “the disputed appeal falls within” the
waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate
rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.”
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). The
government argues that all three of these conditions are met in this case.
Consistent with our obligation under Anders, we conducted an independent
review of the proceedings. See 386 U.S. at 744. After doing so, we agree with the
government that Mr. Burger’s appeal waiver should be enforced under Hahn. We
therefore grant the government’s motion and dismiss the appeal. We also grant
counsel’s motion to withdraw.
Entered for the Court
Per Curiam
Appellate Case: 20-6197 Document: 010110516032 Date Filed: 05/03/2021 Page: 2

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