United States of America v. Ibanga Etuk, a/k/a Mark

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IBANGA ETUK, a/k/a Mark,
Defendant - Appellant.
No. 21-5062
(D.C. No. 4:20-CR-00100-CVE-1)
(N.D. Okla.)
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ORDER AND JUDGMENT*
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Before McHUGH, MORITZ, and CARSON, Circuit Judges.
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Ibanga Etuk pled guilty to bank fraud and aggravated identity theft, in
violation of 18 U.S.C. §§ 1344(2) and 1028A. The district court sentenced him to
48 months’ imprisonment. Although his plea agreement contained a broad waiver of
his appellate rights, he filed a notice of appeal. The government has moved to
enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.
2004) (en banc) (per curiam).
Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
* This order and judgment is not binding precedent, except under the doctrines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
November 12, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-5062 Document: 010110603775 Date Filed: 11/12/2021 Page: 1

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voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the
Hahn conditions have been satisfied: (1) Etuk’s appeal is within the scope of the
appeal waiver because his sentence was within the range contemplated by the plea
agreement; (2) he knowingly and voluntarily waived his appellate rights; and
(3) enforcing the waiver would not result in a miscarriage of justice. In response,
Etuk, through counsel, states he “do[es] not contest the government’s motion.” Resp.
at 2.
Based on this concession and our independent review of the record, we grant
the government’s motion and dismiss the appeal. We do so, however, without
prejudice to Etuk’s right to pursue post-conviction relief on the grounds permitted in
his plea agreement.
Entered for the Court
Per Curiam
Appellate Case: 21-5062 Document: 010110603775 Date Filed: 11/12/2021 Page: 2

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