                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   February 3, 2009
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 08-3256
    v.                                        (D.C. No. 6:07-CR-10220-WEB-1)
                                                          (D. Kan.)
    JEFFREY R. HEIDER,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and McCONNELL, Circuit Judges.



         The government has moved to enforce defendant Jeffrey R. Heider’s waiver

of his right to appeal as set forth in the parties’ plea agreement, and to dismiss

this appeal. Mr. Heider’s appointed counsel filed a response pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that this appeal presents no legally

nonfrivolous issues, and counsel moves to withdraw. At this court’s request,



*
      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 This order and judgment is not binding precedent, except under the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.
Mr. Heider filed a pro se response arguing that the plea agreement should not be

enforced because enforcement of the appeal waiver would result in a miscarriage

of justice.

       Mr. Heider pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g) and to corruptly influencing a witness in violation

of 18 U.S.C. § 1512(b). Pursuant to the comprehensive plea agreement, he

“knowingly and voluntarily waive[d] any right to appeal . . . any matter in

connection with this prosecution, [his] conviction, and sentence.” Plea

Agreement at 6. Further, he agreed to “waive[] any right to file and prosecute an

appeal of a sentence imposed which is within the guideline range determined

appropriate by the court.” Id. Additionally, he “waive[d] the right to appeal the

sentence imposed . . . except to the extent . . . the court depart[ed] upwards from

the applicable sentencing guideline range determined by the court.” Id.

       At sentencing, the district court determined, among other things, that a

four-level guideline enhancement was appropriate after finding that Mr. Heider

possessed the firearm in connection with another felony offense. The district

court then sentenced Mr. Heider to 120 months of imprisonment on the

felon-in-possession count and 180 months of imprisonment on the

influencing-a-witness count, with the sentences to run concurrently.

       Thereafter, Mr. Heider filed a notice of appeal. The government has moved

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

                                         -2-
(10th Cir. 2004) (en banc) (per curiam). In Hahn, we held that a waiver of

appellate rights will be enforced if (1) “the disputed appeal falls within the scope

of the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily

waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a

miscarriage of justice.” Id. at 1325. The miscarriage-of-justice factor requires

the defendant to show (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

(quotation marks omitted). To satisfy the last factor, “the error must seriously

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

(quotation marks and alterations omitted).

      Because Mr. Heider’s arguments concern only the third Hahn factor–

miscarriage of justice–we address only this factor. See United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that court need not address

each Hahn factor if defendant does not raise issue relating to that factor).

      Mr. Heider argues that the appeal waiver should not be enforced on

miscarriage-of-justice grounds because the government withheld exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). According to

Mr. Heider, the prosecution failed to produce ballistics reports until sentencing

and these reports were used for the relevant-conduct, four-level enhancement. He

                                          -3-
contends he would not have signed the plea agreement if he had been aware of

these reports.

      Liberally construing Mr. Heider’s pro se response, see Haines v. Kerner,

404 U.S. 519, 520-21 (1972), we conclude that he has not shown a miscarriage of

justice. His concurrent sentences of 120 and 180 months are within the statutory

maximums of ten years for the felon-in-possession count and twenty years for the

witness-influencing count.

      And the waiver is not “otherwise unlawful.” See Hahn, 359 F.3d at 1327

(quotation omitted). The plea agreement specified that the guidelines be applied

by the district court, that the district court could consider any reliable evidence in

determining the offense level, that the district court could consider conduct

charged in dismissed counts of the indictment and other uncharged criminal

activity as relevant conduct when calculating the offense level for the two counts

to which Mr. Heider pled guilty, that the district court would be the sole decider

of his sentence, and that Mr. Heider waived any right to appeal a sentence

imposed within the guideline range determined by the court. The plea agreement

also indicated that Mr. Heider understood that

      the United States will provide to the court and the United States
      Probation Office all information it deems relevant to determining the
      appropriate sentence in this case. This may include information
      concerning the background, character, and conduct of [Mr. Heider]
      including the entirety of [his] criminal activities. [He] understands
      these disclosures are not limited to the count to which [he] has pled
      guilty.

                                          -4-
Plea Agreement at 7. Additionally, at the change of plea hearing, Mr. Heider

again confirmed that he understood that the sentence was a matter solely within

the district court’s discretion and that the court could consider any reliable

information about his background, character, and conduct at the time of

sentencing. The plea agreement and plea-hearing colloquy establish that the

court’s determination of the guideline range set the bounds for the waiver,

permitting an appeal only to the extent the court departed upwards from the

applicable sentencing guideline range determined by the court. Thus, Mr. Heider

has not shown that enforcement of the waiver would result in a miscarriage of

justice “seriously affect[ing] the fairness, integrity or public reputation of judicial

proceedings.” See Hahn, 359 F.3d at 1327 (quotation marks omitted).

      Accordingly, we GRANT the government’s motion to enforce the plea

agreement, GRANT Mr. Heider’s counsel’s motion to withdraw, and DISMISS

the appeal.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




                                          -5-
