United States v. Herring, No. 21-4016 (10th Cir. 2021)

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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, FILED United States Court of Appeals Tenth Circuit April 1, 2021 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. LAWRENCE PAUL HERRING, No. 21-4016 (D.C. No. 2:15-CR-00743-TS-1) (D. Utah) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BACHARACH, McHUGH, and EID, Circuit Judges. _________________________________ Lawrence Paul Herring pleaded guilty to possessing child pornography. The district court imposed a prison term below the advisory Sentencing Guidelines range. Although Mr. Herring’s plea agreement included a broad waiver of his appellate rights, he has filed a notice of appeal. The government moves to enforce the appeal waiver and dismiss this appeal under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). 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falls within” the waiver’s scope; (2) “the defendant knowingly and voluntarily waived his * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. appellate rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.” Id. at 1325. The government argues that all three of these circumstances exist in this case. Mr. Herring’s counsel has responded, stating that she “is unaware of any basis to oppose” the government’s motion. Aplt. Resp. at 1. We need not address a Hahn prong that a defendant does not dispute. See United States v. Porter, 405 F.3d 1136, 1143 (2005). Because Mr. Herring does not dispute any of the Hahn prongs, we enforce his appeal waiver and dismiss this appeal. Entered for the Court Per Curiam 2

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