Government may seek enforcement of appeal waiver provisions of plea agreement by letter rather than formal motion or brief

APPEAL United States v. Contreras-Ramos, No. 05-4227, ___ F.3d ___ (10th Cir. Aug. 9, 2006)(Utah). Appeal of conviction for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). HELD: Where government explicitly cites appeal waiver portion of plea agreement in letter to court of appeals in response to Anders brief by appellate counsel, appeal waiver is not waived by government and must be enforced if it meets requirements of United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). In its letter declining to file brief in this case, government explicitly stated that “this appeal is clearly barred by the appeal waiver signed by Contreras-Ramos as part of his plea agreement” Accordingly, letter was sufficient to assert application of appeal waiver and avoid waiver of that right. Government is accorded flexibility in form of request for enforcement of appeal waiver. Waiver is waived only when government utterly neglects to invoke the waiver. Read the opinion here.