                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 18 2003
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA

               Plaintiff-Appellee,                       No. 02-3399
          v.                                             (D. Kansas)
 ESAK WILLIAM HADLEY,                           (D.C. No. 02-CR-20028-KHV)

               Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.


      Esak William Hadley pleaded guilty to one count of theft of firearms from

the business inventory of federally licensed firearms dealers, a violation of 18

U.S.C. § 922(u). The district court sentenced him to 46 months’ imprisonment.

      Mr. Hadley now seeks to appeal his sentence, arguing that the district court

erred in applying section 2K2.1(b)(4) of the United States Sentencing Guidelines

to arrive at a two-level increase in the offense level. However, as the government


      *
        At the parties’ request, the case is unanimously ordered submitted without
oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This
order and judgment is not binding precedent, except under the doctrines of res
judicata, collateral estoppel, and law of the case. 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.
notes, the plea agreement signed by Mr. Hadley, Mr. Hadley’s counsel, and the

government contains a provision stating that “[t]he defendant also agrees to waive

his right to appeal any sentenced imposed within the applicable guideline range as

determined by the Court; the defendant does reserve the right to appeal an upward

departure or an illegal sentence apart from the sentencing guidelines.” Rec. doc.

21, attach., at 4. (Plea Agreement, dated Aug. 5, 2002, attached to Petition to

Enter Plea of Guilty and Order Entering Plea, filed Aug. 5, 2002).

      “A defendant’s knowing and voluntary waiver of the statutory right to

appeal his sentence is generally enforceable.” United States v. Hernandez, 134

F.3d 1435, 1437 (10th Cir. 1998). There are exceptions to this general rule. For

example, in spite of a waiver provision, a defendant may still appeal his sentence

if the district court relied on an impermissible factor such as race, if ineffective

assistance of counsel in connection with the negotiation of the waiver rendered

the waiver invalid, if the sentence exceeds the statutory maximum, or if the

waiver is otherwise unlawful. See United States v. Cockerham, 237 F.3d 1179,

1182 (10th Cir. 2001).

      None of those exceptions applies here. Mr. Hadley does not argue that his

sentence was based on consideration of an impermissible factor, that he received

ineffective assistance of counsel in the negotiation of the plea agreement, or that

his sentence was otherwise unlawful. Moreover, Mr. Hadley’s argument does not


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involve a challenge to an upward departure, the other ground for appeal preserved

in the plea agreement. 1 Finally, Mr. Hadley has not disputed that he entered into

the plea agreement knowingly and voluntarily. Thus, Mr. Hadley has waived his

right to appeal. 2

       Accordingly, for the reasons set forth above, we DISMISS this appeal.



                                Entered for the Court,


                                Robert H. Henry
                                Circuit Judge


       1
        Mr. Hadley does seek to appeal the two-level increase in the offense level
under USSG § 2K2.1(b)(4). However, under the Guidelines, an upward
adjustment in the offense level is distinguishable from an upward departure. See
United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992) (stating that “[t]he
guidelines differentiate between departures and adjustments”). “Adjustments are
changes to the total offense level calculated under the guidelines, while a
departure is a sentence imposed outside the designated guideline range.” Id.
Here, Mr. Hadley’s plea agreement allowed him to appeal upward departures but
not upward adjustments.
       2
          We further note that the case on which Mr. Hadley’s counsel primarily
relies in his appellate brief, United States v. Rowlett, 23 F.3d 300 (10th Cir.
1994), has been overruled. See United States v. Goff, 314 F.3d 1248, 1250 n.1
(10th Cir. 2003). Although our opinion in Goff was issued nearly two months
before Mr. Hadley’s counsel filed his opening brief, Mr. Hadley’s brief does not
cite that case. We remind Mr. Hadley’s counsel of an attorney’s obligations
under 10th Cir. R. 46.5(B), which provides that an attorney’s presenting a brief to
the court constitutes a certification that, “to the best of the [attorney’s]
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances . . . the issues presented are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or
establishing new law.”

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