                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 23, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 11-3116
    v.                                         (D.C. No. 5:10-CR-40051-RDR-1)
                                                           (D. Kan.)
    THOMAS CHRISTIAN O’NEILL,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, EBEL, and MATHESON, Circuit Judges.



         The government moves to enforce the appeal waiver contained in the plea

agreement it entered into with Thomas Christian O’Neill. We GRANT the

motion.

         Mr. O’Neill pleaded guilty to distribution of fifty or more grams of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). Under the terms of the



*
      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 This order and judgment is not binding precedent, except under the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.
agreement, he waived his right to appeal the sentence imposed, if it was within

the guideline range the district court determined to be appropriate and if it did not

depart upwards from that range. The court sentenced Mr. O’Neill to 108 months

of imprisonment, which was below the applicable guideline range of 151 to 188

months of imprisonment. Despite the appeal waiver and the downward departure,

Mr. O’Neill filed a notice of appeal.

      The government has moved to enforce the appeal waiver pursuant to United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Hahn

directs us “to determine: (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. A miscarriage of justice

occurs where (1) “the district court relied on an impermissible factor such as

race”; (2) “ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid”; (3) “the sentence exceeds the statutory

maximum”; or (4) “the waiver is otherwise unlawful.” Id. at 1327 (internal

quotation marks omitted). To satisfy the fourth factor, “the error [must] seriously

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

(internal quotation marks omitted).

      Mr. O’Neill’s arguments concern the scope of the waiver prong and the

otherwise-unlawful aspect of the miscarriage of justice prong. He first contends

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that if he is allowed to appeal he “would argue that the court improperly

attributed drug amounts to [him] and applied an incorrect guideline range, and

that the matter should be remanded for a lower sentence.” Resp. to Mot. to

Enforce at 2. He contends this claim does not fall within the scope of the waiver

because he did not know what the presentence investigation report would state

and there was a risk that he would end up with more imprisonment time than he

expected. He contends that “a waiver of appellate rights should not result in the

coerced abandonment of all hope when a conclusion by the district court is simply

not supported by the evidence, which [he] believes to be the case here.” Id.

Also, he asserts that the “waiver [did not] give the district court absolute power to

determine all matters at sentencing without any hope of appellate review.” Id.

at 3. 1

          Because Mr. O’Neill is raising sentencing issues, his appeal necessarily is

within the scope of the waiver. Cf. United States v. Weeks, ___ F.3d ___,

2011 WL 3452053, at *5 n.4 (10th Cir. Aug. 9, 2011) (agreeing with parties that

“appeal [did] not fall within the scope of the waiver, because [appellant was]


1
      Mr. O’Neill does not argue that he may appeal his below-the-guidelines
sentence because it does not fall within the scope of the appeal waiver. If he had
made this argument, we would reject it. The plea agreement states both that he
waived any right to challenge a sentence within the guideline range determined
appropriate by the district court and that he waived any right to appeal a sentence
imposed that did not depart upwards from the applicable guideline range
determined by the court. We conclude this language also forecloses an appeal of
a sentence below the guideline range.

                                            -3-
contesting the voluntariness of his plea, not raising sentencing issues”). To hold

the appeal waiver does not encompass alleged sentencing errors “would nullify

the waiver based on the very sort of claim it was intended to waive,” United

States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007), and would ignore the

concession in the plea agreement that the applicable guideline range is the one the

district court determines is appropriate.

      Additionally, Mr. O’Neill argues that it would be a miscarriage of justice to

deny an appeal when the evidence that determines how many years of

imprisonment a defendant will serve is truly in question. Presumably, this

argument relates to the waiver being otherwise unlawful, because none of the

other three circumstances identified under the miscarriage-of-justice prong seem

to be called into question. See Hahn, 359 F.3d at 1327. This exception to

enforcing the appeal waiver “looks to whether the waiver is otherwise unlawful,

not to whether another aspect of the proceeding may have involved legal error.”

Smith, 500 F.3d at 1213 (citation omitted) (internal quotation marks omitted).

Mr. O’Neill’s argument that the alleged errors in the district court’s sentencing

procedure 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].’” Id.

(quoting Hahn, 359 F.3d at 1326 n.12 (addressing knowingness and voluntariness

of appeal waiver)). Mr. O’Neill therefore cannot show a miscarriage of justice.

                                            -4-
     Accordingly, the government’s motion to enforce is GRANTED, and this

appeal is DISMISSED.

                                  ENTERED FOR THE COURT
                                  PER CURIAM




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