United States v. Tanner, 10th Cir. (2014)
United States v. Tanner, 10th Cir. (2014)
No. 13-6183
(D.C. No. 5:12-CR-00065-D-4)
(W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
This panel has determined that oral argument would not materially assist 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
and $6,800 in laundered drug proceeds in connection with the second. The district
court sentenced Mr. Tanner to 135 months imprisonment on each count, to run
concurrently, a term within the applicable guideline range of 135 to 168 months
determined by the court. Mr. Tanner then filed this appeal, despite the broad waiver
of appeal rights included in his plea agreement. The government has filed a motion
to enforce that waiver. We grant the motion and dismiss the appeal.
The governments motion explains in facially sufficient fashion that this
appeal falls within Mr. Tanners appeal waiver, that the waiver was knowing and
voluntary, and that there are no circumstances to suggest a miscarriage of justice to
excuse the waiver. See generally United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (en banc) (per curiam) (summarizing three components of courts
inquiry when enforcing appeal waiver). In response, after noting two sentencing
objections urged by his client, counsel for Mr. Tanner conceded there were no
grounds upon which to oppose application of the appeal waiver and moved to
withdraw under Anders v. California, 386 U.S. 738 (1967). We gave Mr. Tanner an
opportunity to reply to counsels filing, but (despite a lengthy extension) the deadline
for that response has passed without anything forthcoming from Mr. Tanner.
When appellate counsel moves to withdraw under Anders, we must examine
the proceedings and determine whether the appeal is wholly frivolous. Id. at 744.
In the present context, that means we must assess whether there is a non-frivolous
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Because it appears it would be wholly frivolous for Mr. Tanner to oppose the
governments motion to enforce his appeal waiver, we grant that motion as well as
counsels motion to withdraw. The appeal is dismissed.
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