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

                            FOR THE TENTH CIRCUIT                        January 30, 2018
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                         No. 17-3229
                                                (D.C. No. 6:10-CR-10080-EFM-2)
MATTHEW W. HUTCHINSON,                                      (D. Kan.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, O’BRIEN, and BACHARACH, Circuit Judges.
                  _________________________________

      Matthew W. Hutchinson entered into a plea agreement containing a collateral

attack waiver. After he appealed the denial of a post-judgment motion, the

government moved to enforce the waiver under United States v. Hahn, 359 F.3d

1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We ordered Mr. Hutchison to

respond to the government’s motion to enforce the appeal waiver by December 15,

2017. He has not responded to the motion. We grant the motion to enforce and

dismiss the appeal.


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
      In 2011, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement,

Mr. Hutchinson pleaded guilty to one count of possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a) and (b)(1)(A). In accordance

with the plea agreement, he was sentenced to 120 months’ imprisonment, which was

below the calculated Sentencing Guidelines range. He did not file a direct appeal.

More than six years after his conviction, however, he filed a Fed. R. Crim. P. 36

“Motion to Correct Clerical Error.”

      The Rule 36 motion alleged the presentence report erroneously stated it was

applying an enhancement for possession of a dangerous weapon, when no such

enhancement was applied. The probation officer responded, recognizing certain

mathematical errors (which had worked in Mr. Hutchinson’s favor) and asserting the

enhancement correctly applied based on the facts. Based on the response, the district

court denied the Rule 36 motion. It then denied reconsideration, noting

Mr. Hutchinson (1) was informed of the enhancement and could have objected at the

time of sentencing, and (2) received a stipulated 120-month sentence rather than a

higher sentence under the Guidelines—which, but for the mathematical errors, would

have been higher yet.

      When Mr. Hutchinson appealed, the government moved to enforce the

collateral attack waiver in his plea agreement. Mr. Hutchinson has not responded to

the motion to enforce.

      Under Hahn, we consider “(1) whether the disputed appeal falls within the

scope of the waiver of [collateral attack] rights; (2) whether the defendant knowingly

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and voluntarily waived his [collateral attack] rights; and (3) whether enforcing the

waiver would result in a miscarriage of justice as we define herein.” 359 F.3d at

1325. A miscarriage of justice occurs “[1] where the district court relied on an

impermissible factor such as race, [2] where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, [3] where

the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise

unlawful.” Id. at 1327 (internal quotation marks omitted).

      All three Hahn factors are satisfied. First, because the district court did not

depart upward, the waiver provision precludes “any right to . . . collaterally attack

any matter in connection with this prosecution, the defendant’s conviction, or the

components of the sentence to be imposed” and “any right to challenge a sentence or

otherwise attempt to modify or change his sentence or manner in which it was

determined in any collateral attack . . . .” Mot. to Enforce, Attach. B at 5. That broad

waiver includes the Rule 36 motion within its scope. Second, Mr. Hutchinson

acknowledged both in the plea agreement and during the plea colloquy that his entry

into the plea agreement was knowing and voluntary, and he has not presented any

evidence to the contrary. See Hahn, 359 F.3d at 1325, 1329. And third, there is no

indication that enforcing the waiver would result in a miscarriage of justice as Hahn

defines that term.

      Accordingly, the motion to enforce is granted, and the appeal is dismissed.


                                            Entered for the Court
                                            Per Curiam

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