                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          July 6, 2005
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-6279
 v.
                                                   (D.C. No. CR-03-006)
                                                       (W.D. Okla.)
 DAWN MARIE NELSON,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, MCKAY and HENRY, Circuit Judges.




      In this direct criminal appeal, we hold that Defendant Dawn Marie Nelson’s

waiver of her appellate rights—made before the Supreme Court issued its opinion

in Blakely v. Washington, 124 S. Ct. 2531 (2004)—bars our consideration of



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Defendant’s claim that the district court imposed a sentence that violated Blakely.

We therefore DISMISS the appeal.

I.        Background

          Defendant Dawn Marie Nelson and eight co-defendants were indicted for

drug and firearms offenses in early 2003. Nelson agreed to plead guilty to a

superseding information. This information charged her with (1) being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)-(2); and (2)

knowingly and intentionally using a telephone in committing or facilitating

distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). The plea

agreement entered into by Defendant and the government on February 9, 2004

states:

          [D]efendant in exchange for the promises and concessions made by
          the United States in this plea agreement, knowingly and voluntarily
          waives her right to:

                a.    Appeal or collaterally challenge her guilty plea and any
                      other aspect of her conviction, including but not limited
                      to any rulings on pretrial suppression motions or any
                      other pretrial dispositions of motions and issues;

                b.    Appeal, collaterally challenge, or move to modify under
                      18 U.S.C. § 3582(c)(2) or some other ground, her
                      sentence as imposed by the Court and the manner in
                      which the sentence is determined, provided the sentence
                      is within or below the applicable guideline range
                      determined by the Court to apply to this case. . . .

                c.    It is provided that (i) defendant specifically does not
                      waive the right to appeal an upward departure from the

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                    sentencing guideline range determined by the Court to
                    apply to this case, and (ii) her waiver of rights to appeal
                    and to bring collateral challenges shall not apply to
                    appeals or challenges based on changes in the law
                    reflected in Tenth Circuit or Supreme Court cases
                    decided after the date of this agreement that are held by
                    the Tenth Circuit or Supreme Court to have retroactive
                    effect.

Later on February 9, Defendant pled guilty to the superseding information

pursuant to this plea agreement.

      In sentencing Defendant in August 2004—some two months after the

Supreme Court decided Blakely—the district court pronounced two alternative

sentences: one of 168 months’ imprisonment based on the application of the

sentencing guidelines, and an alternative sentence of 168 months’ imprisonment

based on the application of the relevant statutes, which was to be imposed in the

event that the sentencing guidelines were found unconstitutional. Defendant

timely appealed, asserting that the district court improperly enhanced her sentence

on the basis of drug amounts that were not ascertained by a jury, in violation of

Blakely. 1 After Defendant filed her opening brief in this appeal, the government

filed a brief raising, inter alia, the issue of Defendant’s appellate rights waiver.




      1
       Defendant’s citation of Blakely is sufficient to raise an argument under
United States v. Booker, 125 S. Ct. 738 (2005). See United States v. Clifton, 406
F.3d 1173, 1175 n.1 (10th Cir. 2005).

                                         -3-
Defendant had an opportunity to file a reply brief addressing the government’s

arguments but failed to do so.

II.   Analysis

      “[W]e generally enforce plea agreements and their concomitant waivers of

appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004)

(en banc) (per curiam). In considering whether to dismiss appeals brought by

defendants who have waived their appellate rights in a plea agreement, we

determine whether (1) the appeal falls within the scope of the appellate waiver;

(2) the defendant’s waiver of his or her appellate rights was knowing and

voluntary; and (3) enforcement of the appellate waiver would result in a

miscarriage of justice. Id. at 1325.

      In this case, the government argues that Defendant’s appeal falls within the

scope of her appellate rights waiver, the waiver was knowing and voluntary, and

enforcement of the waiver would not result in a miscarriage of justice. Defendant

fails to counter any of these arguments. Defendant had an opportunity to make

such assertions in a reply brief, but defense counsel did not even file such a brief.

Accordingly, we must enforce Defendant’s appellate rights waiver and dismiss her

appeal. See Hahn, 359 F.3d at 1328-29. 2


      2
       Hahn states that, in cases in which a defendant files a notice of appeal
after waiving his or her appellate rights, the government should file a motion to
                                                                       (continued...)

                                        -4-
      Even if Defendant had argued against the enforcement of the appellate

rights waiver, we would find that waiver enforceable under the three-part Hahn

test. Moreover, even if we were to refrain from enforcing Defendant’s appellate

rights waiver, we would deny Defendant relief. The district court’s determination

of drug quantity at sentencing constituted harmless error because the district court

imposed identical alternative sentences under the sentencing guidelines and the

relevant statutes. See United States v. Serrano-Dominguez, 406 F.3d 1221, 1223-

24 (10th Cir. 2005).




      2
        (...continued)
enforce the plea agreement before the parties brief the underlying merits of the
case. See 359 F.3d at 1328. In this case, the government did not file such a
motion.
       The approach taken by the government in this case is not consistent with
the procedure laid out in Hahn, and we urge the government to employ the proper
procedure in the future. Nonetheless, the government’s erroneous approach does
not preclude us from enforcing Defendant’s appellate rights waiver. Because
Defendant had an opportunity to file a reply brief addressing the government’s
waiver argument, Defendant has not been prejudiced by the fact that the
government raised the argument in its appellate brief. The fact that Defendant did
not actually file such a reply brief does not alter this conclusion. See generally
United States v. Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005) (emphasizing the
substantive nature of the analysis that we apply before considering the appellate
arguments of a defendant who has waived his or her appellate rights, not the
procedure followed by the government in responding to the defendant’s filing of a
notice of appeal).

                                        -5-
III.   Conclusion

       For the foregoing reasons, we DISMISS Defendant’s appeal.



                                    ENTERED FOR THE COURT



                                    David M. Ebel
                                    Circuit Judge




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