                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  December 20, 2007
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-6215
                                                 (D.C. No. 07-CR-00058-C-2)
    MICHAEL DUANE RABIEH,                               (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


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



         Defendant Michael Duane Rabieh pleaded guilty, pursuant to a plea

agreement, to one count of distribution of a quantity of methamphetamine in

violation of 21 U.S.C. § 841(b)(1)(C). The district court sentenced Mr. Rabieh to

151 months’ imprisonment, five years’ supervised release, and the payment of a

$100 special assessment. This sentence was at the bottom of the 151 to 188



*
      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 This order and judgment is not binding precedent, except under the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.
month advisory guideline range determined by the district court. Mr. Rabieh filed

an appeal, even though he agreed in his plea agreement to waive his right to

appeal if his sentence was “within or below the advisory guideline range

determined by the [c]ourt.” Mot. to Enforce, Ex. 2 (Plea Agrmt.) at 6. The

government has moved to enforce the plea agreement under United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the

government’s motion and dismiss the appeal.

      In Hahn, 359 F.3d at 1325, this court held that “in reviewing appeals

brought after a defendant has entered into an appeal waiver,” this court will

determine “(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.” A miscarriage of justice will result if (1) “the district

court relied on an 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.” Id. at 1327 (quotation omitted).

      Mr. Rabieh contends that the motion to enforce should be denied because

he did not knowingly and voluntarily waive his appellate rights because (1) he

was not advised that he would be sentenced as a career offender, and (2) the




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district court relied on an impermissible factor when it characterized his prior

crime of larceny as a crime of violence. Resp. to Mot. to Enforce, at 2-3.

      In determining whether Mr. Rabieh’s waiver of his right to appeal was

made knowingly and voluntarily, we consider “whether the language of the plea

agreement states that [he] entered the agreement knowingly and voluntarily” and

whether there was “an adequate Federal Rule of Civil Procedure 11 colloquy.”

Hahn, 359 F.3d at 1325. Mr. Rabieh bears the “burden to present evidence from

the record establishing that he did not understand the waiver.” Id. at 1329

(quotation omitted).

      Mr. Rabieh fails to meet his burden. The plea agreement stated that

Mr. Rabieh “knowingly and voluntarily waives” his right to appeal or collaterally

challenge his guilty plea or “his sentence as imposed by the Court and the manner

in which the sentence is determined . . . .” Plea Agrmt. at 5, 6. It clearly

explained that the maximum term of imprisonment was twenty years, id. at 2, that

the district court would consider the factors in 18 U.S.C. § 3553(a) and the

advisory Sentencing Guidelines, id. at 3, and had the authority to impose any

sentence within the 20-year maximum sentence, id. at 5 (emphasis added). It

further stated that both parties reserved the right to advocate for and present

evidence relevant to guideline adjustments. Id. at 4. Mr. Rabieh signed the plea

agreement after acknowledging that he had discussed it with his attorney and

understood it. Id. at 11.

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       Furthermore, Mr. Rabieh signed a Petition to Enter Plea of Guilty, in which

he stated that he knew the sentence was to be determined solely by the district

court and could be up to twenty-years’ imprisonment. Mot. to Enforce, Ex. 1, at

4. Mr. Rabieh also agreed that he knew that “there is no limitation placed on the

information the judge can consider at the time of sentencing concerning [his]

background, character and conduct,” and that the district court would take these

factors into consideration at sentencing. Id. at 6. He further agreed that the

guilty plea and the waivers of his rights were made voluntarily and completely of

his own free choice, id. at 8, that no one had made him any promises or

predictions about the sentence that would be imposed, id. at 9, and that there was

no further information he wanted before entering a plea, id. at 10.

       Likewise, at the plea colloquy, Mr. Rabieh stated that he understood the

rights he was waiving and the terms of the plea agreement and that he was

pleading guilty voluntarily. Mot. to Enforce, Ex. 3 (Tr. of Change of Plea Hr’g)

at 5-11. He stated he understood there that if the sentencing guideline

determination differed than how he expected, he still would not have a right to

appeal, id. at 10, and he acknowledged his understanding that even if the district

court made an error of law at sentencing, he was giving up his right to appeal that

error, id. at 12-13.

       Mr. Rabieh has the burden to show that he did not knowingly and

voluntarily waive his right to appeal. See United States v. Edgar, 348 F.3d 867,

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872-73 (10th Cir. 2003). “A mere silent record does not satisfy this burden.” Id.

at 873. Mr. Rabieh presents no record evidence showing that he did not

understand the waiver, and nothing in the record suggests that he did not

knowingly and voluntarily enter into the plea agreement. Knowledge of the

specific claims of error in sentencing is not a prerequisite for a knowing waiver of

the right to appeal the sentence. Hahn, 359 F.3d at 1326. In deciding whether a

waiver is knowing and voluntary, the focus is on the “right relinquished” rather

than on the “prospective result of the sentencing proceeding.” Id. Therefore,

Mr. Rabieh’s claimed unawareness that his past convictions could trigger a career

offender enhancement has no bearing on whether he knowingly and voluntarily

entered into the appeal waiver.

      Accordingly, based on the language of the plea agreement, the plea

petition, and his reaffirmation of the plea agreement’s provisions during the Rule

11 colloquy, we conclude Mr. Rabieh knowingly and voluntarily waived his right

to appeal his sentence. We GRANT the government’s motion to enforce the plea

agreement and DISMISS the appeal.




                                       ENTERED FOR THE COURT
                                       PER CURIAM




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