United States of America v. Orin Kristich

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORIN KRISTICH,
Defendant - Appellant.
No. 21-2126
(D.C. No. 1:18-CR-02635-WJ-1)
(D. N.M.)
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, EID and CARSON, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver in Orin Kristich’s plea agreement pursuant to United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Exercising jurisdiction under
28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
Kristich pleaded guilty to coercion and enticement, in violation of 18 U.S.C.
§ 2422(a). Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties stipulated that a
sentence between five to twelve years’ imprisonment would be appropriate. As part
of the plea agreement, Kristich waived his right to appeal his conviction and any
* This order and judgment is not binding precedent, except under the doctrines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
January 4, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-2126 Document: 010110627029 Date Filed: 01/04/2022 Page: 1

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sentence within the stipulated range. Both by signing the written plea agreement and
in his responses to the court’s questions at the change of plea hearing, Kristich
acknowledged that he was entering his plea knowingly and voluntarily and that he
understood its consequences, including the possible sentences and appeal waiver.
The court accepted the plea, including the parties’ sentencing agreement, and
sentenced Kristich to 120 months in prison. Despite receiving a sentence within the
stipulated range, he filed a notice of appeal.
In ruling on a motion to enforce, we consider whether the appeal falls within
the scope of the waiver, whether the waiver was knowing and voluntary, and whether
enforcing it would result in a miscarriage of justice. Hahn, 359 F.3d at 1325.
In response to the government’s motion to enforce, Kristich, through counsel,
acknowledged that his appeal waiver is enforceable under the standards set out in
Hahn. Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir.
2005) (noting that court need not address uncontested Hahn factor).
Entered for the Court
Per Curiam
Appellate Case: 21-2126 Document: 010110627029 Date Filed: 01/04/2022 Page: 2

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