United States v. Petty

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN GLENN PETTY,

Defendant - Appellant.

No. 20-5007
(D.C. No. 4:19-CR-00087-JED-1)
(N.D. Okla.)
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ORDER AND JUDGMENT
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Before MATHESON, McHUGH, 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 Kevin Glenn Petty’s plea agreement pursuant to United States v.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
Petty pleaded guilty to theft of government property, in violation of 18 U.S.C.
§ 641. As part of his plea agreement, he waived his right to appeal his conviction and
any sentence, unless the sentence imposed exceeded the statutory maximum of
120 months’ imprisonment. The plea agreement acknowledged that Petty was

*
This order and judgment is not binding precedent, except under the doctrines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

March 13, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-5007 Document: 010110319252 Date Filed: 03/13/2020 Page: 1

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entering his plea knowingly and voluntarily and that he understood its consequences,
including the possible sentences and appeal waiver. At the change of plea hearing,
the district court reminded him of the possible sentences and broad appeal waiver,
and he confirmed that he understood and that he wanted to plead guilty. Based on his
responses to the court’s questions and its observations of his demeanor during the
hearing, the court accepted Petty’s plea as having been knowingly and voluntarily
entered. It then sentenced him to 24 months’ imprisonment, which was the minimum
sentence in the applicable guidelines range. Despite his appeal waiver and the fact
that his sentence was below the statutory maximum, Petty filed a notice of appeal.
In ruling on a motion to enforce, 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.” Hahn, 359 F.3d at
1325.
In response to the government’s motion to enforce, Petty’s counsel stated that
Petty has no non-frivolous argument against enforcement of his appeal waiver. We
gave Petty an opportunity to file a pro se response to the motion to enforce, but he
has not done so. We construe the counseled response and Petty’s failure to file a
pro se objection to the motion to enforce as a concession that his waiver was knowing
and voluntary, that his appeal falls within the scope of the waiver, and that
enforcement of the waiver would not result in a miscarriage of justice. See United
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States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting that court need not
address uncontested Hahn factor).
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
Appellate Case: 20-5007 Document: 010110319252 Date Filed: 03/13/2020 Page: 3