                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        July 14, 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. 06-3015
                                                 (D.C. No. 04-CR-20013-JW L)
    ALEJAND RO SALAZAR,                                    (D . Kan.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M U RPH Y, and M cCO NNELL, Circuit Judges.




         Defendant Alejandro Salazar appeals from an order of the district court

re-imposing a 262-month sentence on remand following vacatur of his original

sentence under United States v. Booker, 543 U.S. 220 (2005), see United States v.

Salazar, 149 F. App’x 816 (10th Cir. 2005). The government has now filed a

motion under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004), to enforce




*
      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 This order and judgment is not binding precedent, except under the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.
an appeal waiver included in Salazar’s plea agreement. For reasons explained

below, we grant the motion and dismiss the appeal accordingly.

      Salazar pled guilty to distributing fifty grams or more of methamphetamine

in violation of 18 U.S.C. § 841(a)(1). His plea agreement recited that “[e]xcept as

set forth herein, defendant knowingly and voluntarily waives any right to appeal

or collaterally attack any matter in connection with this prosecution and

sentence.” Plea Agreement at 5, para. 9 (filed M arch 29, 2004). It went on to

state that he “knowingly waives any right to appeal a sentence imposed which is

within the guideline range determined appropriate by the court,” i.e., that “he

waives the right to appeal . . . except to the extent, if any, the court departs

upwards from the applicable sentencing guideline range determined by the court.”

Id. He expressly reserved a right to appeal, however, if he w as sentenced as a

career offender based on a determination that his “prior conviction for involuntary

[vehicular] manslaughter or either of the assault convictions arising out of the

sam e vehicle accident is a crime of violence within the meaning of U.S.S.G.

§ 4B1.1.” 1 Id. The issue here is whether this waiver encompasses the present

appeal and satisfies the conditions for enforcement set out in Hahn.




1
      W hen the district court found Salazar to be a career offender based on the
manslaughter conviction, he appealed that determination and also challenged his
sentence under Booker. W e affirmed the career-offender ruling but vacated and
remanded for resentencing under a non-mandatory application of the sentencing
guidelines as prescribed by Booker. See Salazar, 149 F. App’x at 818-19.

                                           -2-
      Under Hahn, we must consider “(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.” 359 F.3d at 1325. The

miscarriage-of-justice prong requires the defendant to show (a) his sentence relied

on an impermissible factor such as race; (b) ineffective assistance of counsel in

connection with the negotiation of the appeal waiver rendered the waiver invalid;

(c) his sentence exceeded the statutory maximum; or (d) his appeal waiver is

otherw ise unlawful. Id. at 1327. The government’s motion addresses all of these

factors, explaining why none of them undermines Salazar’s appeal waiver. Upon

review of the pertinent materials, we agree.

      Salazar’s response to the government’s motion raises an issue that jointly

implicates the first two factors. He insists that the following statement made by

the district court during the plea colloquy in effect greatly expanded the range of

matters he reasonably understood to fall outside the waiver:

      [U]nder the written plea agreement in paragraph 9 [which contains
      the appeal waiver and reservation language] you have waived your
      right to appeal the sentence that I impose unless m y sentence would
      be an illegal one or unless I should make an upward departure from
      the sentencing guidelines.

Doc. 70 at 7 (emphasis added). He argues that “[s]ince the court clearly stated

the defendant would be able to appeal an illegal sentence, ostensibly any illegal

sentence, there is an ambiguity which occurred at the time of the explanation of

                                         -3-
the appellant’s waiver of his right to appeal.” Appellant’s Opposition to M otion

to Enforce Appeal W aiver at 4. Noting that ambiguities in such waivers are to be

construed against the government, see United States v. Porter, 405 F.3d 1136,

1142 (10th Cir.), cert. denied, 126 S. Ct. 550 (2005), Salazar apparently

concludes (though he does not explicitly say) that he is free to appeal on the

ground of any sentencing error that could be characterized as legal. 2

      Assuming that the court’s mischaracterization of an appeal waiver could

create a material ambiguity not present in the language of the waiver itself, 3 we

conclude that the ambiguity suggested here would not in any event authorize

Salazar’s appeal. The court’s reference to an “illegal sentence” could, at most,

have reserved a very limited category of permissible appeals into w hich Salazar’s

appeal w ould not fit.


2
       The government notes that Salazar has broadly designated the issue to be
raised on appeal as whether his sentence “‘was in violation of law .’” A ppellee’s
M otion to Enforce Appeal Waiver at 7 (quoting Docketing Statement at 4).
3
       This appears to be an unsettled question. W e have held that statements
made by the court at sentencing cannot overcome the plain language of an appeal
waiver. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1206-07 (10th Cir.
2004). Our emphasis on the fact that such statements were made “after the appeal
waiver was signed and the guilty plea was entered,” id. at 1206, suggests that a
court’s mischaracterization of an appeal waiver might create an ambiguity if
expressed during the plea proceedings, but we have not yet conclusively so held.
At least one other circuit in accord with Arevalo-Jimenez has noted the same
distinction while specifically leaving the effect of erroneous statements made at
the plea proceedings an open question. United States v. Andis, 333 F.3d 886, 891
n.5 (8th Cir. 2003). W e note that it is also not clear whether the principle that
ambiguities be construed against the government, as drafter of the plea agreement,
would apply to ambiguities created by statements from the bench.

                                         -4-
      W e have repeatedly held that “illegal sentence” is not a catch-all term

referring to any legal error in the imposition of sentence; rather, a sentence is

illegal if it “‘is ambiguous with respect to the time and manner in which it is to be

served, is internally contradictory, omits a term required to be imposed by statute,

is uncertain as to the substance of the sentence, or is a sentence which the

judgment of conviction did not authorize.’” 4 United States v. Dougherty,

106 F.3d 1514, 1515 (10th Cir. 1997) (quoting United States v. Wainwright,

938 F.2d 1096, 1098 (10th Cir. 1991) (citation and further quotation omitted));

see also United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n.10 (10th Cir.)

(holding sentence, even if wrongfully imposed, was not illegal because it did not

exceed statutory maximum), cert. denied, 126 S. Ct. 495 (2005); United States v.

Brown, 316 F.3d 1151, 1160 n.4 (10th Cir. 2003) (same). 5 Salazar does not argue,

nor do any of the materials submitted to us suggest, that his sentence is deficient

in any such fundamental respect. His objection that his sentence was imposed “in


4
      W e have also recognized that an unconstitutional sentence is “illegal.” See
United States v. Groves, 369 F.3d 1178, 1182 (10th Cir. 2004).
5
       W hile we look to the defendant’s understanding of his plea agreement here,
that understanding must be reasonable. United States v. Chavez-Salais, 337 F.3d
1170, 1172 (10th Cir. 2003). G iven the established meaning of “illegal sentence,”
Salazar cannot reasonably have understood this reference as creating the broad
exception he now seeks to invoke. Indeed, his aberrant gloss on the term would
gut the bargain struck by the government in the plea agreement and render
superfluous his own express reservation of a right to appeal the crime-of-violence
determination, which, as an issue of law, see, e.g., United States v. M oore, 401
F.3d 1220, 1225 (10th Cir. 2005); United States v. M itchell, 113 F.3d 1528,
1532-33 (10th Cir. 1997), would be appealable in any event.

                                          -5-
violation of law ” asserts nothing more than a generic claim of error insufficient to

implicate the extremely limited waiver exception the court’s reference to “illegal

sentence” may have created. Cf. Gonzalez-Heurta, 403 F.3d at 739 n.10; Brown,

316 F.3d at 1160 n.4.

      Turning to the remainder of the Hahn test, the government contends that

there are no grounds to doubt, in more general fashion, the knowing and voluntary

nature of Salazar’s plea and associated appeal waiver, and Salazar has not

disputed the point. M oreover, we have reviewed the primary record sources

relating to this issue–the language of the plea agreement and the Rule 11 colloquy

at the plea hearing, see Hahn, 359 F.3d at 1325–and agree with the government

that they do not reflect any deficiencies that would invalidate the appeal waiver.

      W e also discern no basis upon which to find a miscarriage of justice. There

is nothing in the record, and nothing suggested by Salazar outside the record, to

indicate that an impermissible sentencing factor was involved. The sentence

imposed was within the statutory maximum. There has been no suggestion that

counsel was ineffective in any way with respect to the plea and associated waiver.

The only remaining basis for finding a miscarriage of justice, i.e., that the waiver

was “otherw ise unlaw ful,” requires the demonstration of an error that “‘seriously

affect[ed] the fairness, integrity, or public reputation of judicial proceedings.’”

Hahn, 359 F.3d at 1329 (quoting United States v. Olano, 507 U.S. 725, 732




                                          -6-
(1993)). No potential error of that magnitude has been suggested or is otherwise

evident here.

      The government’s motion to enforce the appeal waiver and dismiss the

appeal is GRANTED. The appeal is DISM ISSED. The mandate shall issue

forthwith.



                                      ENTERED FOR THE COURT

                                      PER CURIAM




                                        -7-
