Government may wait until briefing on merits to seek enforcement of appeal waiver provisions of plea agreement

APPEAL United States v. Clayton, No. 04-3394, ___ F.3d ___ (10th Cir. Aug. 1, 2005)(Kansas). Appeal of sentence for distribution of mixture or substance containing detectable amount of cocaine base in violation of 21 U.S.C. § 841(a)(1). HELD: Nothing in Tenth Circuit Rule 27.2(A)(1) or United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), requires government to file motion for enforcement of appeal waiver provisions of plea agreement prior to filing of brief on merits with court of appeals. Government may raise issue of enforcement of appeal waiver in its merits brief. Read the opinion here.