                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                          July 11, 2006
                              FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                          Clerk of Court

    U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,

      v.                                                   No. 06-2124
                                                     (D.C. No. CR-05-595-JC)
    D A V ID SILV A ,                                       (D . N.M .)

               Defendant-Appellant.



                               OR D ER AND JUDGM ENT *


Before BR ISC OE, O’BRIEN, and TYM KOVICH, Circuit Judges.




           Defendant David Silva pled guilty, pursuant to a plea agreement, to three

counts of possession with intent to distribute five or more grams of cocaine base

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. The

district court sentenced him to concurrent 140-month terms of imprisonment for

each of the three counts. Although his sentence was within the statutory range




*
      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 This order and judgment is not binding precedent, except under the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. 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.
and the plea agreement waived any right to appeal a sentence w ithin the statutory

range, M r. Silva filed this appeal. Thereafter, the government moved to enforce

the plea agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(en banc) (per curiam). M r. Silva has responded that the motion should be denied

for the reasons that (1) he did not knowingly and voluntarily agree to waive an

appeal of the district court’s denial of his request for an evidentiary hearing on

alleged outrageous government conduct and (2) enforcing the plea agreement

would result in a miscarriage of justice seriously undermining the fairness,

integrity, and public reputation of judicial proceedings. As discussed below, w e

grant the government’s motion and dismiss the appeal.

      In Hahn, 359 F.3d at 1325, this court held that “in review ing appeals

brought after a defendant has entered into an appeal waiver” this court will

determine “(1) whether the disputed appeal falls within the scope of the waiver of

appellate rights; (2) whether the defendant knowingly and voluntarily waived his

appellate rights; and (3) whether enforcing the waiver would result in a

miscarriage of justice.” A miscarriage of justice will result if (1) “the district

court relied on an impermissible factor such as race”; (2) “ineffective assistance

of counsel in connection with the negotiation of the waiver renders the waiver

invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is

otherwise unlawful.” Id. at 1327 (quotation omitted). For an “otherwise

unlaw ful” w aiver, the error must seriously affect the fairness, integrity, or public

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reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732

(1993); Hahn, 359 F.3d at 1327.

      The government’s motion to enforce addresses each of the three Hahn

prongs. M r. Silva, however, opposes the motion only based on the second and

third. Thus, we need not address the first prong. 1 See United States v. Porter,

405 F.3d 1136, 1143 (10th Cir.) (recognizing each Hahn factor need not be

addressed if defendant does not make argument w ith respect to that factor), cert.

denied, 126 S. Ct. 550 (2005).

                    KN OW ING AN D V OLU NTA RY W AIVER

      M r. Silva argues that he did not knowingly and voluntarily enter into the

waiver, because he did not know that the district court would, at the time of

sentencing, declare that it would not accept any evidence he intended to present

concerning wrongdoing by government agents and he did not know that the

district court would sentence him based on both his and the government agents’

wrongful conduct. In determining whether M r. Silva’s w aiver of his right to

appeal was made knowingly and voluntarily, we consider “whether the language

of the plea agreement states that [he] entered the agreement knowingly and

voluntarily” and whether there is “an adequate Federal Rule of Civil Procedure 11

colloquy.” Hahn, 359 F.3d at 1325. M r. Silva bears the “burden to present



1
      In any event, it is clear that this appeal falls within the scope of the waiver
of appellate rights.

                                         -3-
evidence from the record establishing that he did not understand the waiver.” Id.

at 1329 (quotation omitted).

      M r. Silva fails to meet his burden. The plea agreement fully set forth the

factual basis for the plea. It stated that he understood that the maximum term of

imprisonment was from five to forty years and that there could be no prediction

what sentence the district court would impose. R., Vol. 1, Doc. 66 at 2-3. The

plea agreement further stated that he “knowingly waives the right to appeal any

sentence within the statutory range applicable to the statute(s) of conviction.” Id.

at 7. It also provided that he

      agrees and represents that this plea of guilty is freely and voluntarily
      made and not the result of force or threats or of promises apart from
      those set forth in this plea agreement. There have been no
      representations or promises from anyone as to what sentence the
      Court will impose.

Id. Also, the signature section of the plea agreement provided that M r. Silva

“understand[s] the agreement and voluntarily sign[s] it.” Id. at 9.

      Likewise, at the plea colloquy, M r. Silva indicated that he understood the

rights he was waiving and the terms of the plea agreement and that he was

pleading guilty voluntarily. Id., Vol. III at 5-7. He stated that he had reviewed

the plea agreement with his attorney and was satisfied with its terms. Id. at 5-6.

He further indicated that he understood that his sentence would be from five to

forty years’ imprisonment for each count. Id. at 6-7. In addition, he stated that

the facts set forth in the plea agreement were correct. Id. at 8.

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      Nothing in the record suggests that M r. Silva did not knowingly and

voluntarily enter into the plea agreement. He presents no record evidence

showing that he did not understand the waiver. See United States v. Edgar,

348 F.3d 867, 872-73 (10th Cir. 2003). Although, after he pled guilty, he filed in

district court a motion to strike the waiver of an appeal, he did not argue in that

motion that his waiver was unknowing and involuntary. 2 The plea agreement

squarely addresses the amount and type of cocaine M r. Silva sold to the

government agents. He conceded those facts and indicated an awareness of the

possible punishment.

      Knowledge of the specific claims of error in sentencing is not a prerequisite

for a knowing waiver of the right to appeal the sentence. Hahn, 359 F.3d at 1326.

In deciding whether a waiver is knowing and voluntary, the focus in on the “right

relinquished” rather than on the “prospective result of the sentencing proceeding.”

Id. Therefore, M r. Silva’s inability to know what the district court would do at

sentencing has no bearing on whether he knowingly and voluntarily entered into

the waiver. Accordingly, based on the language of the plea agreement and his

reaffirm ation of the plea agreement’s provisions during the Rule 11 colloquy, w e

2
       After entering into the plea agreement, M r. Silva filed a motion to modify
the plea agreement, requesting that the district court strike the portion of the
waiver stating that he knowingly waived his right to appeal any sentence within
the applicable statutory range. He argued that the appeal waiver violated public
policy and fairness concerns by precluding him from challenging on appeal the
disparity in sentencing between cocaine powder and cocaine base. The district
court denied the motion.

                                          -5-
conclude M r. Silva knowingly and voluntarily waived his right to appeal his

sentence.

                           M ISCARRIAGE OF JUSTICE

      Next, M r. Silva argues that enforcing the waiver will result in a miscarriage

of justice because the waiver is “otherwise unlawful.” He maintains that the

majority of his sentencing time is based on outrageous government conduct and

sentencing entrapment or manipulation by government agents, who made several

cocaine purchases, switched their purchases from powder cocaine to crack

cocaine, and greatly increased the amounts they purchased, all solely to increase

his punishment. He contends that although he was predisposed to selling small

amounts of powder cocaine, the government agents entrapped him into selling

larger amounts of crack cocaine, thereby subjecting him to greater punishment.

W ithout a meaningful opportunity to challenge the government’s alleged wrongful

conduct, he argues that the fairness, integrity, and public reputation of judicial

proceedings will be undermined.




                                          -6-
      In addition, he argues that the district court wrongly prejudged the issue

concerning the agents’ conduct. 3 This too, he argues, undermined the fairness,

integrity, and public reputation of judicial proceedings.

      In deciding whether a waiver is “otherwise unlawful,” we consider, among

other things, whether the plea agreement correctly stated the statutory maximum,

and review whether the sentence conforms with plea agreement’s terms and

M r. Silva’s understanding of the plea. See United States v. M aldonado, 410 F.3d

1231, 1234 (10th Cir.) (per curiam), cert. denied, 126 S. Ct. 577 (2005). W e

conclude that M r. Silva has not met his burden to persuade us that the waiver is

“otherwise unlawful.” Id. at 1233.

      At the plea hearing, the district court informed M r. Silva that he would

have the right at sentencing to make a statement on his own behalf and to have his

3
       In response to M r. Silva’s request for an evidentiary hearing, the district
court, in part stated

              W ell you can put on testimony if you want to, but I’m not
      going to buy it. I mean, they’re just doing their job. And if your guy
      wants to sell crack, that’s his problem. Just because they asked for
      it, he said, “I can get you crack,” or “I can get you meth.” W hatever.
      And they said, “W e’ll take either.” It’s kind of the end of the
      discussion for me.

      ....

             He’s a drug dealer, a level V. He says he can supply anything,
      that he’s the big guy in Bernalillo. So if he’s the big guy in
      Bernalillo, he better be ready to take the consequences.

R., Vol. IV at 8-9.

                                          -7-
attorney make a statement. R., Vol. III at 9. Defense counsel did make a

statement at the sentencing hearing. At that time, the district court noted and

defense counsel agreed that there was no ambiguity about what M r. Silva sold to

the undercover agents. Nor is there any question that M r. Silva received a

sentence less than the statutory maximum, both in accordance with the plea

agreement’s terms and M r. Silva’s stated understanding of the possible sentence.

Accordingly, we conclude the plea was not “otherwise unlawful.” Indeed,

concerns of fairness, integrity, and public reputation favor enforcing the appellate

waiver.

      W e GRANT the government’s motion to enforce the plea agreement and

DISM ISS the appeal. The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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