                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     February 28, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-6365
                                                  (D.C. No. CR-06-121-HE)
    G REG O RY LA M O N T LO N G ,                      (W .D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, T YM KOV ICH, and GORSUCH, Circuit Judges.




         Defendant Gregory Lamont Long pled guilty to possession with intent to

distribute 202 grams of a mixture or substance containing a detectable amount of

cocaine base, 213 grams of a mixture or substance containing a detectable amount

of cocaine, and a quantity of a mixture or substance containing a detectable

amount of marijuana, in violation of 21 U.S.C. § 841(a)(1). By plea agreement,




*
      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 This order and judgment is not binding precedent, except under the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.
he waived his right to “[a]ppeal or collaterally challenge his guilty plea and any

other aspect of his conviction.” Plea Agreement at 7. In addition, he waived his

right to “[a]ppeal, collaterally challenge, or move to modify . . . , his sentence

imposed by the Court and the manner in which the sentence is determined,

provided the sentence is within or below the advisory guideline range determined

by the Court to apply to this case.” Id. He, however, did “not waive the right to

appeal a sentence above the advisory guideline sentencing range determined by

the Court to apply to this case.” Id. After determining that the applicable

guideline range w as 188 to 235 months of imprisonment, the district court

imposed a sentence of 200 months of imprisonment followed by five years of

supervised release. Notwithstanding the plea waiver, M r. Long filed a pro se

notice of appeal.

      The government has moved to enforce M r. Long’s plea waiver under

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

M r. Long’s attorney filed a response stating that M r. Long would “file his Petition

in Error within the prescribed time frame,” that the “Petition in Error will allege,

among other things, that the sentence of time to serve of 200 months is outside

the advisory guideline,” and that until M r. Long “files his Petition in Error and

Brief in support [a] ruling granting appellee’s M otion for Enforcement may be

premature.” Resp. to M ot. for Enforcement of the Plea Agreement at 2. For these

reasons, counsel requested that this court deny the motion to enforce the plea

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agreement. This court gave M r. Long an opportunity to file a pro se response to

the motion to enforce. To date, he has not done so.

      W e have review ed the petition to enter a guilty plea, the plea agreement,

the plea hearing transcript, the sentencing hearing transcript, the government’s

motion to enforce the plea agreement, and M r. Long’s counsel’s response to the

motion to enforce. W e conclude that the following three factors have been

satisfied: (1) “the disputed appeal falls within the scope of the waiver of

appellate rights”; (2) M r. Long “knowingly and voluntarily waived his appellate

rights”; and (3) “enforcing the waiver would [not] result in a miscarriage of

justice.” Hahn, 359 F.3d at 1325. Accordingly, we conclude that M r. Long’s

waiver of his right to appeal is enforceable. Further, we note, contrary to his

counsel’s argument, M r. Long received a sentence that fell within the advisory

guideline range.

      W e therefore GRANT the government’s motion to enforce the plea

agreement and DISM ISS the appeal. The mandate shall issue forthwith.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




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