                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  March 20, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-2295
                                                  (D.C. No. 02-CR-1055-JB)
    MICHAEL SEVENS MARTINEZ,                              (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


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



         Defendant Michael Sevens Martinez pleaded guilty to second degree

murder in Indian country, in violation of 18 U.S.C. §§ 1111(a), (b), and 1153. He

did so pursuant to a plea agreement that stipulated to a twenty-five year sentence

and contained a waiver of his appellate rights. Despite the appeal waiver,

defendant filed an appeal. The government has now filed a motion to enforce 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 This order and judgment is not binding precedent, except under the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.
appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(en banc) (per curiam). We grant the motion to enforce and dismiss the appeal.

      Martinez’s docketing statement states that he intends to appeal the district

court’s order denying his motion to dismiss the indictment as barred by the statute

of limitations set forth in 18 U.S.C. § 3282(a). After the district court denied this

motion to dismiss, Martinez pleaded guilty and signed a plea agreement stating, in

relevant part, that he “waives the right to appeal any component of his conviction

or sentence established pursuant to [Fed. R. Crim. P.] 11(c)(1)(C) and this plea

agreement.” Plea Agreement at 3, ¶ 7. Martinez argues, in response to the

government’s motion to enforce this waiver, that he never agreed not to appeal

the denial of his motion to dismiss, and therefore, his appeal is outside the scope

of the appeal waiver, was not knowingly and voluntarily entered into, and that it

would be a miscarriage of justice to enforce the waiver. We disagree, and

conclude that Martinez waived the right to appeal this claim in his plea

agreement.

      In determining whether an appeal is precluded by a defendant’s plea

agreement waiver of appellate rights, we consider: “(1) whether the disputed

appeal falls within the scope of the waiver . . . ; (2) whether the defendant

knowingly and voluntarily waived his appellate rights; and (3) whether enforcing

the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.

A miscarriage of justice occurs when (1) the district court relies on an

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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, i.e., the error seriously affects the fairness, integrity or public

reputation of judicial proceedings. Id. at 1327.

      As noted, Martinez waived his right to appeal any component of his

conviction in the plea agreement. Further, at the plea colloquy, the district court

asked Martinez if he understood that he was waiving his right to appeal both his

sentence and any component of his conviction or sentence, and defendant said

that he did understand this. Tr. of Plea Hr’g, at 12. The appeal waiver did not

provide any exception to the broad appeal waiver permitting him to challenge the

denial of his motion to dismiss. Thus, this claim is within the scope of the appeal

waiver. See United States v. Lyons, 510 F.3d 1225, 1233 (10th Cir. 2007)

(holding that defendant’s appeal of the denial of his motion to dismiss was within

scope of his appeal waiver because the plea agreement’s waiver provision did not

reserve this issue as an exception to the waiver).

      Further, Martinez has not met his burden of demonstrating that his waiver

was not knowing and voluntary. He stated in his plea agreement that he

knowingly waived his right to appeal any component of his sentence. Further,

when questioned by the court during his plea colloquy, Martinez again stated he

understood he was waiving his right to appeal any component of his conviction or

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sentence. These admissions are entitled to great weight. See Blackledge v.

Allison, 431 U.S. 63, 74 (1977). Martinez does not present any evidence or point

to any other aspect of the proceedings that even suggests his appeal waiver was

not entered into knowingly and voluntarily. Our review of the plea agreement

and Martinez’s statements in open court establishes that his waiver of appellate

rights was both knowing and voluntary.

      Finally, we conclude enforcement of the waiver would not result in a

miscarriage of justice. Martinez claims that the conviction and sentence are

unlawful because the district court erred in not dismissing the indictment. This

argument does not support a claim that “the waiver is otherwise unlawful.” Hahn,

359 F.3d at 1327. “The relevant question . . . is not whether [defendant’s]

sentence is unlawful . . ., but whether . . . his appeal waiver itself [is]

unenforceable.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).

Martinez has not presented any argument that his appeal waiver itself was

unlawful, or that enforcement of the waiver would seriously affect the fairness,

integrity, or public reputation of the judicial proceedings.

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

waiver and DISMISS the appeal.


                                         ENTERED FOR THE COURT
                                         PER CURIAM




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