                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 10-6101
    v.                                          (D.C. No. 5:09-CR-00289-F-1)
                                                        (W.D. Okla.)
    ARTHUR MORRIS MANNIE, JR.,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, KELLY, and O’BRIEN, Circuit Judges.



         Pursuant to a plea agreement, Arthur Morris Mannie, Jr. pleaded guilty to

knowingly possessing with intent to distribute fifty grams or more of a mixture or

substance containing a detectable amount of cocaine base (crack) in violation of

21 U.S.C. § 841(a)(1). The government has moved to enforce the plea

agreement’s appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1325



*
      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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
(10th Cir. 2004) (en banc) (per curiam). Mr. Mannie’s counsel filed a response

stating that “[c]ounsel . . . cannot provide anything factually or legally to the

Court to question or negate the appeal waiver.” Counsel Resp. at 3. We gave

Mr. Mannie an opportunity to respond to his counsel’s determination that the

appeal was frivolous. Mr. Mannie states that he understood he would receive a

sentence determined under Sentencing Guideline § 2D1.1, not Sentencing

Guideline § 4B1.1. He concedes that “[he] knowingly and voluntarily waived his

appellate rights, and subsequent collateral attack rights if he received a guidelines

range under section 2D1.1, however, not under section 4B1.1[.] [A]t best the plea

is ambiguous and must favor Mannie’s appellate rights.” Pro Se Resp. at 4.

      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.” 359 F.3d at 1325. Mr. Mannie seems to

be arguing that enforcing the waiver would result in a miscarriage of justice

because the court erroneously sentenced him under Guideline § 4B1.1. 1

      A miscarriage of justice occurs “[1] where the district court relied on an

impermissible factor such as race, [2] where ineffective assistance of counsel in

1
      Although we are not required to address a Hahn factor that the defendant
does not contest, see United States v. Porter, 405 F.3d 1136, 1143 (10th Cir.
2005), we have independently confirmed that this appeal is within the scope of
the appellate waiver and that Mr. Mannie knowingly and voluntarily waived his
appellate rights.

                                          -2-
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.” Hahn, 359 F.3d at 1327 (quotation omitted). Mr. Mannie’s

argument implicates only the fourth exception. This court has held, however, that

the fourth exception “looks to whether the waiver is otherwise unlawful, not to

whether another aspect of the proceeding may have involved legal error.” United

States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (quotation and citation

omitted). A defendant’s “argument that alleged errors in the court’s

determination of [his] sentence should invalidate [his] 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].’” Smith, 500 F.3d at 1213 (quoting Hahn, 359 F.3d at 1326 n.12). “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. In short, Mr. Mannie’s mistake regarding the applicable

Sentencing Guidelines does not nullify his appellate waiver.

      The motion for an extension of time to respond to the motion is DENIED

AS MOOT and the motion to withdraw as counsel is GRANTED. The motion to

enforce the plea agreement is GRANTED and this appeal is DISMISSED.

                                       ENTERED FOR THE COURT
                                       PER CURIAM


                                         -3-
