                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-7091
                                              (D.C. No. 6:07-CR-00070-JHP-1)
    JAMES LEE COVINGTON,                                (E.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.


         James Lee Covington pleaded guilty to possessing an unregistered firearm.

Under the terms of his plea agreement, Mr. Covington waived “the right to appeal

[his] sentence on any ground, except to challenge an upward departure from the

applicable guideline range as determined by the Court.” Plea Agreement at 7,

para. 19. The district court determined the applicable sentencing range to be

121 to 151 months and sentenced Mr. Covington to the statutory maximum


*
      This panel 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. This order and judgment is not binding precedent, except under the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.
sentence of 120 months in prison. Despite waiving his appellate rights,

Mr. Covington thereafter filed an appeal, prompting the government to seek to

enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.

2004) (en banc) (per curiam). Mr. Covington’s lawyer subsequently filed a

response to the government’s motion to enforce stating his belief that the appeal

waiver was enforceable, citing Anders v. California, 386 U.S. 738 (1967). We

afforded Mr. Covington an opportunity to file a pro se response on his own

behalf, but to date, he has failed to respond.

      Under Hahn, we will enforce an appeal waiver if: (1) “the disputed appeal

falls within the scope of the waiver”; (2) “the defendant knowingly and

voluntarily waived his appellate rights”; and (3) “enforcing the waiver would

[not] result in a miscarriage of justice.” 359 F.3d at 1325. A miscarriage of

justice occurs when (1) the district court relies on an impermissible factor such as

race; (2) ineffective assistance of counsel in connection with the negotiation of

the waiver renders it invalid; (3) the sentence exceeds the statutory maximum; or

(4) the waiver is otherwise unlawful, i.e., the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at 1327.

      Based on the government’s motion to enforce, defense counsel’s response,

and our independent review of the record, we conclude that the Hahn factors are

satisfied. Mr. Covington was sentenced below the applicable guideline range, at

the statutory maximum. He acknowledged during the plea colloquy and in his

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written plea agreement that he was knowingly and voluntarily waiving his

appellate rights. And nothing in the record indicates that enforcing the waiver

would result in a miscarriage of justice. Accordingly, we GRANT the

government’s motion to enforce the appeal waiver and DISMISS the appeal.


                                      ENTERED FOR THE COURT
                                      PER CURIAM




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