                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        August 1, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-6137
                                                  (D.C. No. 5:12-CR-00170-R-1)
BRANDI J. HENSON,                                         (W.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


      Brandi J. Henson pled guilty to one count of wire fraud. As part of the plea

agreement, Ms. Henson agreed to forfeit the proceeds of the offense in the amount of

$398,315.12. Ms. Henson’s plea agreement also contained a waiver of her right to

appeal from her sentence and any matter in connection with the forfeiture of assets.

In spite of these waivers, Ms. Henson seeks to challenge the district court’s decision


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
to amend the forfeiture order to include substitute property. The government has

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

(10th Cir. 2004) (per curiam).

       When reviewing a motion to enforce, 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.” Id. at 1325.

Ms. Henson asserts that the appeal waiver should not be enforced because her appeal

is outside the scope of the waiver. We disagree.

       The plea agreement in this case contains two appeal waivers. One is a broad

waiver in which Ms. Henson “knowingly and voluntarily waive[d]” her right to

appeal or collaterally challenge her sentence and the manner in which it was

determined. Mot. to Enforce, Att. 1 (Plea Agreement) at 9. It is well-established that

forfeiture is part of the sentence. See Libretti v. United States, 516 U.S. 29, 38-39

(1995) (“Forfeiture is an element of the sentence imposed . . . .”); United States v.

Wittig, 575 F.3d 1085, 1096 (10th Cir. 2009) (“[F]orfeiture is a component of a

sentence . . . .”). Ms. Henson’s plea agreement also contains a separate section that

specifically addresses the forfeiture of assets. In that section, she knowingly and

voluntarily waived her right to: a jury trial on the forfeiture of assets, “all

constitutional, legal, and equitable defenses to the forfeiture of these assets in any




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proceeding,” and “appeal or collaterally attack any matter in connection with the

forfeiture provided herein.” Mot. to Enforce, Att. 1 at 7-8.

       Ms. Henson contends, however, that her appeal is not within the scope of the

appeal waivers in her plea agreement because she did not agree to the forfeiture of

substitute property. But in her plea agreement, she did “agree[] that forfeiture of

substitute assets . . . shall not be deemed an alteration of [her] sentence.” Id. at 8.

Ms. Henson was therefore on notice that the district court could order the forfeiture

of substitute assets and that such a determination would not be considered an

alteration of her sentence. Accordingly, we conclude that Ms. Henson’s appeal of the

district court’s amended forfeiture order falls within the scope of her agreement to

waive any challenge to her sentence and any matter in connection with the forfeiture

of assets.

       We grant the government’s motion to enforce and dismiss this appeal.


                                                 Entered for the Court
                                                 Per Curiam




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