                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         November 24, 2017
                             FOR THE TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                         _________________________________                   Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-4031
                                                  (D.C. No. 2:15-CR-00645-TS-1)
CHAD RYAN HUNTSMAN,                                          (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
      _________________________________

      We dismiss the appeal of Defendant Chad Ryan Huntsman because his plea

agreement waived his right to challenge his below-guidelines sentence.

      In November 2015 a grand jury indicted Defendant on one count of producing

child pornography, see 18 U.S.C. § 2251(a), and one count of possessing child pornogra-

phy, see 18 U.S.C. § 2252A(a)(5)(B). The following August he entered into a plea

agreement with the government. Under the agreement Defendant would plead guilty to

* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determi-
nation 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judgment is not binding precedent, except under the doctrines of law of the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.
the first count, the government would dismiss the second count, and the government

would recommend that his prison term be 240 months. In addition, Defendant waived his

right to appeal. Paragraph 8 of the agreement states:

              I know that 18 U.S.C. § 3742(a) sets forth the circumstances
              under which I may appeal my sentence. However, fully un-
              derstanding my right to appeal my sentence, and in considera-
              tion of the concessions and/or commitments made by the
              United States in this plea agreement, I knowingly, voluntarily
              and expressly waive my right to appeal as set forth in para-
              graph 12 below.

R., Vol. 1 at 18 (emphasis added). And Paragraph 12(e)(1) states:

              Fully understanding my limited right to appeal my sentence,
              as explained above in paragraph 8, and in consideration of the
              concessions and/or commitments made by the United States
              in this plea agreement, I knowingly, voluntarily, and expressly
              waive my right to appeal any sentence imposed upon me, and
              the manner in which the sentence is determined, on any of the
              grounds set forth in 18 U.S.C. § 3742 or on any ground what-
              ever, except I do not waive my right to appeal (1) a sentence
              above the maximum penalty provided in the statute of convic-
              tion as set forth in paragraph 2 above [i.e., 18 U.S.C. § 2251];
              and (2) a sentence above the high-end of the guideline range
              as determined by the district court at sentencing, or, in the
              event that no such determination is made by the district court,
              a sentence above the high-end of the guideline range as set
              forth in the final presentence report.

Id. at 19 (emphasis added).

       The presentence investigation report prepared by the probation office calculated a

total offense level of 43 and a criminal-history category of I, resulting in an advisory

guidelines sentence of life imprisonment. But because the statutory maximum term for

Defendant’s offense is 30 years, the guidelines range dropped to 30 years.

       In a presentencing filing Defendant referred to the need for sentencing consistency


                                              2
and observed that similar defendants had received 240-month (20-year) sentences. And

at the sentencing hearing itself, his counsel reemphasized the importance of consistency

and noted that “in the last two or three cases I’ve had with this Court, we’ve gone be-

tween 20 and 25 years.” R., Vol. 3 at 18. Also, in accordance with the plea agreement,

the government stated at the hearing that it believed a 240-month sentence was appropri-

ate. The district court, however, asked the government why Defendant should receive a

lower sentence than those given to two other defendants (Lyman Black and Brenton An-

drews) who had both pleaded guilty to producing child pornography under plea agree-

ments setting the sentence at 300-month (25-year) prison terms.1 Defendant neither ob-

jected to the question nor responded to it. The government pointed to three mitigating

factors: that Defendant had previously suffered a brain injury, had Asperger’s syndrome,

and had made “some earnest attempts to help the government early in this case to find

other perpetrators of the same crime.” Id. at 27. The court agreed that Defendant was

distinguishable from Black and Andrews and sentenced Defendant to 270 months (22.5

years).

          Defendant’s sole contention on appeal is that the district court “erred in basing

[Defendant’s] sentence on materials outside of the record [the sentences of Black and

Andrews] without first notifying [him] of its intent to use unrelated, non-case specific

materials in committing him to federal prison.” Aplt. Br. at 1. But this argument is

barred by Defendant’s appeal waiver. We determine whether an appeal waiver is valid

1
  We grant Defendant’s motion to supplement the appellate record to include the plea
agreements for Black and Andrews.


                                                3
and applicable by considering “(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 mis-

carriage of justice.” United States v. Garcia-Ramirez, 778 F.3d 856, 857 (10th Cir. 2015)

(internal quotation marks omitted). Defendant does not dispute that the first two ele-

ments are satisfied. His only argument concerns the miscarriage-of-justice prong.

       It is a defendant’s burden to show that an appeal waiver causes a miscarriage of

justice. See United States v. Johnson, 756 F.3d 1218, 1221 (10th Cir. 2014). An appeal

waiver causes a miscarriage of justice “[1] where the district court relied on an impermis-

sible 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 1219

(brackets in original). Defendant, however, rests only on a general assertion that

“[e]nforcing the waiver would be a miscarriage of justice.” Aplt. Reply Br. at 6. We are

not persuaded. Defendant points to none of the four miscarriage options as being appli-

cable, and clearly none apply. Nor was there anything close to unfairness when the dis-

trict court challenged his assertion that similar defendants had received sentences of 240

months.




                                             4
       We DISMISS the appeal and GRANT defendant’s motion to supplement the rec-

ord.

                                        Entered for the Court


                                        Harris L Hartz
                                        Circuit Judge




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