                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        August 5, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 04-2176
v.                                                (District of New Mexico)
                                                 (D.C. No. CR-04-537-RB)
JOHNNY LEE DAWSON,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously 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.

      Defendant-appellant Johnny Lee Dawson entered into a written plea

agreement in which he admitted to conspiracy to distribute and distribution of less


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 846, and 860(a), and 18 U.S.C. § 2. The district court accepted the

sentencing range recommended by the presentence report (“PSR”) and sentenced

Dawson to 188 months’ imprisonment. 1 Dawson timely appealed, and defense

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

moved to withdraw. After receiving a copy of counsel’s Anders brief and motion

to withdraw, Dawson filed a pro se brief arguing the merits of his claims. 2 See id.

at 744. The government declined to file a response. Upon review of the parties’

arguments and the entire record on appeal, we conclude that Dawson has waived

his right to challenge his sentence on appeal. Consequently, exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court grants counsel leave to

withdraw and dismisses the appeal.

      Relying on the Supreme Court’s decision in Blakely v. Washington, 124 S.

Ct. 2531 (2004), Dawson argues that his Fifth and Sixth Amendment rights were

violated because his prior convictions, used to enhance his sentence, were not


      1
       Under the career offender provisions of the United States Sentencing
Guidelines (“U.S.S.G.”), Dawson’s base offense level was thirty-four. U.S.S.G.
§ 4B1.1(b). A three-level reduction for acceptance of responsibility was applied,
id. § 3E1.1, producing an adjusted offense level of thirty-one. Based on this
adjusted offense level and Dawson’s criminal history category VI status, id.
§ 4B1.1(b), the PSR recommended a Guidelines range of 188 to 235 months.
      2
       Dawson’s response included a motion for appointment of new counsel
which is hereby denied.

                                        -2-
charged in the indictment filed by the government, proven to a jury, or admitted

by Dawson. In his plea agreement, however, Dawson specifically waived his

right to appeal his sentence. 3 Despite this waiver, defense counsel raised an

objection under Blakely at Dawson’s sentencing and the district court indicated

that the issue would be preserved for appellate review. When the government

objected, the court responded by saying:

      I think that [Dawson] has [preserved the issue] simply by raising
      [Blakely], because at the time the plea agreement was entered into,
      Blakely had not been decided. So that is an after-the-fact
      proposition. And I don’t think anybody can waive anything that they
      didn’t know that they had knowingly and intelligently. And I would
      hope the Government would not take that position in the event that
      the issue did come up. If Blakely had been decided prior to that and
      he gave it away, that’s one thing. But I’m not sure anybody could
      have anticipated Blakely or the lineup in the five votes, frankly. So



      3
       The plea agreement, which was accepted by the district court prior to
sentencing, states:

      The defendant is aware that Title 18, United States Code, § 3742
      affords a defendant the right to appeal the sentence imposed.
      Acknowledging that, the defendant knowingly waives the right to
      appeal any sentence within the applicable guideline range as
      determined by the Court after resolution of any objections by either
      party to the presentence report to be prepared in this case, and the
      defendant specifically agrees not to appeal the determination of the
      Court in resolving any contested sentencing factor. In other words,
      the defendant waives the right to appeal the sentence imposed in this
      case except to the extent, if any, that the Court may depart upwards
      from the applicable sentencing guideline range as determined by the
      Court.


                                         -3-
      I’m just telling you that as far as I am concerned here, you have
      raised the issue . . . .

      Generally, this court “enforce[s] plea agreements and their concomitant

waivers of appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th

Cir. 2004) (en banc). A waiver of the right to appeal will be enforced if (1) the

appeal falls within the scope of the waiver, (2) the waiver was knowing and

voluntary, and (3) enforcing the waiver would not result in a miscarriage of

justice. Id. at 1325. A miscarriage of justice occurs when (1) the district court

relied on an impermissible factor, such as race, (2) defense counsel provided

ineffective assistance, (3) the sentence exceeds the statutory maximum, or (4) the

waiver is otherwise unlawful. Id. at 1327.

      The waiver of appellate rights in Dawson’s plea agreement contains broad

language, excepting only a challenge to an upward departure. Because Dawson’s

Blakely challenge does not relate to an upward departure, there is no question that

this appeal is within the scope of the appellate waiver. Cf. United States v.

Green, 405 F.3d 1180, 1189-90 (10th Cir. 2005).

      As evidenced by the language of the plea agreement stating that the plea

was “freely and voluntarily made,” Dawson’s waiver of his appellate rights was

knowing and voluntary. See Hahn, 359 F.3d at 1325. Although the transcript of

the change of plea hearing is not in the record on appeal, there is nothing in the

record to suggest the waiver was not made knowingly and voluntarily. See United

                                         -4-
States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). Additionally, Dawson

never moved to withdraw his plea and does not now assert that his plea was not

knowing and voluntary. Contrary to the suggestion of the district court, the

Supreme Court’s decisions in Blakely and subsequently in United States v.

Booker, 125 S. Ct. 738 (2005), have no effect on the voluntary and knowing

nature of the waiver. See Green, 405 F.3d at 1190-91.

      Finally, enforcing the appellate waiver in the present case does not result in

a miscarriage of justice. Hahn, 359 F.3d at 1327. In imposing the sentence, the

district court did not rely on an impermissible factor, nor is there any suggestion

of ineffective assistance of counsel. See id. Dawson’s sentence also does not

exceed the statutory maximum. See Green, 405 F.3d at 1191-94 (concluding that

Booker does not affect the meaning of “statutory maximum” for purposes of

enforcing appellate waivers). 4 Nor does this court see any reason why Dawson’s

appellate waiver is unlawful. See United States v. Porter, 405 F.3d 1136, 1144-

45 (10th Cir. 2005) (observing that change in law wrought by Booker does not

render an appeal waiver “unlawful”).

      The district court’s statements that Dawson could appeal his sentence under

Blakely do not modify or override the waiver of the right to appeal contained in



      4
       The maximum statutory penalty to which Dawson was subject was forty
years. See 18 U.S.C. § 860(a).

                                         -5-
Dawson’s plea agreement. See United States v. Black, 201 F.3d 1296, 1302-03

(10th Cir. 2000). Indeed, absent exceptional circumstances, once an agreement is

accepted by the district court, the court lacks the authority to modify the terms of

the plea agreement. Id. at 1303. There are no such circumstances in the present

situation. Accordingly, because Dawson effectively waived his right to appeal his

sentence, the appeal is DISMISSED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                         -6-
