                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                          July 29, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 15-2084
                                                 (D.C. No. 5:14-CR-00195-KG-1)
TERRY LYNN LITTLE, II,                                      (D. N.M.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, PHILLIPS and MORITZ, Circuit Judges.


      This matter is before the court on the government’s motion to dismiss

defendant Terry Lynn Little, II’s appeal because it falls within the scope of the

appeal waiver contained in his Plea Agreement. We grant the government’s motion

and dismiss the appeal.

      The defendant pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). In the Plea Agreement, the


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
defendant “knowingly waive[d] the right to appeal this conviction and any sentence,

including any fine, at or under the maximum statutory penalty authorized by law.”

Mot. to Enforce, Ex. 1 (Plea Agmt.) at 6. The district court sentenced him to

120 months’ imprisonment, followed by three years of supervised release. The court

imposed certain conditions of supervised release, including conditions related to

sex-offender treatment and a psychosexual evaluation, submission to search and

seizure, limitations on viewing of pornography, and contact with children.

      Despite his appeal waiver, the defendant filed an appeal seeking to challenge

these “sex-offender” conditions of supervised release. The government filed a

motion to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). In evaluating a motion to enforce a waiver,

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.

      In response to the government’s motion, the defendant does not argue that his

appeal falls outside the scope of the appeal waiver or that his waiver was not

knowing and voluntary.1 We therefore need not address these issues. See United


1
       In summarizing the history of his case, the defendant notes that his counsel
asserted during his sentencing hearing that the condition of supervised release related
to sex-offender treatment was not contemplated in negotiating the Plea Agreement;
therefore, his counsel stated, the defendant was preserving his right to argue in this
                                                                            (continued)
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States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). Rather, the defendant

contends that enforcing his waiver to preclude him from challenging the imposition

of the sex-offender conditions of supervised release would be a miscarriage of

justice. See Hahn, 359 F.3d at 1325.

      We will find that enforcement of an appeal waiver results in a miscarriage of

justice only “[1] where the district court relied on an impermissible factor such as

race, [2] where ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory

maximum, or [4] where the waiver is otherwise unlawful.” Id. at 1327. “This list is

exclusive: enforcement of an appellate waiver does not result in a miscarriage of

justice unless enforcement would result in one of the four situations enumerated

above.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011) (internal

quotation marks omitted).

      The defendant has the burden to demonstrate that enforcement of his appeal

waiver would result in a miscarriage of justice. See United States v. Anderson,

374 F.3d 955, 959 (10th Cir. 2004). He argues that his waiver is “otherwise

unlawful” because the district court’s sentencing errors “seriously affect the fairness,

court that the Plea Agreement was not freely and voluntarily entered into with respect
to supervised release. But the defendant does not argue in response to the
government’s motion to enforce that his plea was not knowing and voluntary. This
case is therefore unlike United States v. Rollings, 751 F.3d 1183, 1187 (10th Cir.),
cert. denied, 135 S. Ct. 494 (2014), in which the defendant argued his appeal waiver
was invalid because he did not knowingly and voluntarily enter into his plea
agreement.


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integrity or public reputation of judicial proceedings.” Hahn, 359 F.3d at 1327.

(internal quotation mark, alteration, and brackets omitted). In support of this

contention, the defendant argues that the district court erred in imposing the

sex-offender conditions of supervised release because he was not convicted of a sex

offense; his only sex-offense conviction is 15 years old and therefore the conditions

are not warranted; the court failed to make factual findings in support of the special

conditions; the conditions significantly infringe, without justification, on his

constitutional rights, his right to familial association, and his ability to work; and

certain of the conditions are not related to the sentencing factors and are overly

broad. The defendant contends we should set aside his appeal waiver because the

district court’s sentencing errors are clearly significant and of constitutional

dimension.

       The defendant’s contention fundamentally misunderstands “what must be

‘unlawful’ for a waiver to result in a miscarriage of justice.” United States v.

Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007).

       Our inquiry is not whether the sentence is unlawful, but whether the
       waiver itself is unlawful because of some procedural error or because no
       waiver is possible. An appeal waiver is not ‘unlawful’ merely because
       the claimed error would, in the absence of waiver, be appealable. To so
       hold would make a waiver an empty gesture.

Id. (citation omitted). “The whole point of a waiver . . . is the relinquishment of

claims regardless of their merit.” Id. (internal quotation marks omitted). As we




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explained in United States v. Smith, 500 F.3d 1206 (10th Cir. 2007), this

miscarriage-of-justice exception

      looks to whether “the waiver is otherwise unlawful,” not to whether
      another aspect of the proceeding may have involved legal error. [The
      defendant’s] argument that alleged errors in the court’s determination of
      her sentence should invalidate her appellate waiver illustrates what
      Hahn called “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].” [359 F.3d] at 1326 n. 12 (discussing
      whether an appeal waiver was knowing and voluntary); see also, e.g.,
      United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999) (“A
      waiver of the right to appeal . . . includes a waiver of the right to appeal
      blatant error.”). To allow alleged errors in computing a defendant’s
      sentence to render a waiver unlawful would nullify the waiver based on
      the very sort of claim it was intended to waive.

Id. at 1212-13 (citation omitted); see also United States v. Shockey, 538 F.3d 1355,

1357-58 (10th Cir. 2008) (rejecting contention that enforcement of appeal waiver

would amount to miscarriage of justice because defendant’s sentence was so

ambiguous as to be unlawful).

      Having failed to challenge the lawfulness of his appeal waiver, the defendant

has not met his burden to demonstrate a miscarriage of justice. Accordingly, we

grant the government’s motion to dismiss this appeal.


                                                Entered for the Court
                                                Per Curiam




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