                                                                          F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                        September 14, 2006
                            FO R T H E T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

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

                Plaintiff-Appellee,

    v.                                                    No. 06-3231
                                                  (D.C. No. 05-CR-10137-W EB)
    M ICHAEL A. SARBER,                                     (D . Kan.)

                Defendant-Appellant.



                            O R D E R A N D JU D G M E N T *


Before M U R PH Y , H A R T Z, and T Y M K O V IC H , Circuit Judges.




         Defendant M ichael A. Sarber pled guilty to one count of possession with

intent to distribute more than five grams of pure methamphetamine in violation of

21 U.S.C. § 841(a). His plea agreement states that he “knowingly and voluntarily

waives any right to appeal or collaterally attack any matter in connection with this

prosecution, conviction and sentence.” Plea Agreement at 5 (dated M arch 10 and


*
      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 This order and judgment is not binding precedent, except under the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.
filed M arch 13, 2006). M ore specifically, it recites that he “knowingly waives

any right to appeal a sentence imposed which is within the guideline range

determined appropriate by the court,” reserving the right to appeal only “to the

extent, if any, the court departs upwards from the applicable sentencing guideline

range determined by the court.” Id. at 6. The agreement also recites defendant’s

understanding that he faced a sentence of “not less than 5 years nor more than

40 years of imprisonment, a $2,000,000 fine, 4-5 years of supervised release, and

a $100 mandatory special assessment.” Id. at 1. The district court determined

that defendant was a career offender, resulting in a guideline range of 188 to 235

months. The court imposed a sentence of 188 months followed by four years of

supervised release, and defendant appealed. The government has now moved to

enforce defendant’s appeal waiver under United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc). W e grant the motion and dismiss the appeal.

      Under Hahn, we 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.” Id. 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



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exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion

addresses these considerations, explaining why none undermines defendant’s

appeal w aiver here. W e agree.

      Defendant does not contest that he “knowingly and voluntarily admitted his

guilt at the time of the Plea,” “understood the contents of his Plea Agreement,

including the possible punishment,” and “understood at the time of Plea that the

written Plea Agreement included a Waiver of his right to appeal the conviction

and sentence imposed and the application of the guidelines.” Appellant, M ichael

A. Sarber’s Response to Appellee’s M otion for Enforcement of Plea Agreement

at 3. Specifically with respect to the Hahn test, he concedes that the sentencing

issues to be raised on appeal fall within the scope of his waiver, that the plea

colloquy reflects that the w aiver was knowing and voluntary, and that the first

three miscarriage-of-justice factors do not apply. Id. at 5-6. His sole argument

against enforcement of his appeal waiver is that the “waiver is otherwise unlawful

in that the court erred in adopting the PIR findings [regarding the two predicate

offenses the court used to establish his career offender status], seriously affecting

the fairness and integrity of the judicial proceedings.” Id. at 6.




                                          -3-
      Defendant’s argument is fundamentally misdirected. The waiver exception

he invokes looks to w hether “the waiver is otherwise unlawful,” Hahn, 359 F.3d

at 1327 (quotation omitted and emphasis added), not whether some other aspect of

the proceeding may have involved legal error. Defendant’s position that his

appeal waiver should be excused due to alleged error in the determination of his

sentence entails w hat Hahn noted as “the logical failing[] of focusing on the

result of the proceeding, rather than on the right relinquished, in analyzing

whether an appeal waiver is [valid].” 1 Hahn, 359 F.3d at 1326 n.12.

      Thus, “[t]he relevant question . . . is not whether [defendant’s] sentence is

unlawful . . ., but whether . . . his appeal waiver itself [is] unenforceable.”

United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.), cert. denied, 126 S. Ct.

550 (2005). Indeed, to hold that alleged errors under the sentencing guidelines

render an appeal waiver unlawful would nullify the w aiver based on the very sort

of claim it was intended to waive. This circular argument has been repudiated in

many cases. 2 See, e.g., United States v. M organ, 386 F.3d 376, 381-82 (2d Cir.

2004), cert. denied, 1543 U.S. 1169 (2005); United States v. Andis, 333 F.3d 886,

1
      Hahn drew this distinction in relation to whether an appeal waiver was
knowing and voluntary, 359 F.3d at 1326 & n.12, but it is no less apt in relation
to whether such a waiver was lawful.
2
       Of course, if a sentence deviates from the plea agreement’s terms or the
defendant’s expressed understanding at the time of his plea, the error involved
could undercut an appeal waiver in a non-circular way, but we do not have such a
situation here.

                                          -4-
892 (8th Cir. 2003); United States v. Brown, 232 F.3d 399, 403-04 (4th Cir.

2000); United States v. Kratz, 179 F.3d 1039, 1041 (7th Cir. 1999). W hile we

have not explicitly addressed the point after Hahn, we previously enforced an

appeal waiver to dismiss an appeal raising error under the sentencing guidelines.

See United States v. Atterberry, 144 F.3d 1299, 1300-01 (10th Cir. 1998).

      Defendant has not asserted any claim regarding the critical issue whether

his appeal waiver itself was unlawful, much less shown that enforcement of the

waiver would seriously affect the fairness, integrity, or public reputation of the

judicial proceedings. In the latter regard, we note (1) that the plea agreement

clearly set out the maximum sentence defendant faced and explained the appellate

rights he relinquished in exchange for the benefits offered by the government, 3

and (2) that the sentence imposed by the district court complies with the terms of

the agreement and the understanding expressed by the defendant at the plea

hearing. See Porter, 405 F.3d at 1145.

      Having review ed the pertinent materials, we find nothing to except this

case from the consequences of the broad appeal waiver included in defendant’s




3
       W e emphasize that the nature and extent of appellate rights relinquished are
negotiable parts of the plea bargain process. Defendants can preserve sentencing
errors for appeal by specifically excepting them from waiver, see United States v.
Green, 405 F.3d 1180, 1188-89 (10th Cir. 2005), or, for constitutional errors, by
reserving the right to appeal an “illegal sentence,” see United States v. Groves,
369 F.3d 1178, 1182 (10th Cir. 2004).

                                         -5-
plea agreement. The government’s motion to enforce the waiver is GR AN TED

and the appeal is DISM ISSED. The mandate shall issue forthwith.


                                                 ENTERED FOR THE COURT
                                                 PER CURIAM




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