                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         May 8, 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. 06-3412
                                                  (D.C. No. 04-cr-20115-JW L)
    DENNIS GOY ER,                                         (D . Kan.)

              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before H E N RY, L UC ER O, and HO LM ES, Circuit Judges.




          Defendant Dennis G oyer pleaded guilty to one count of conspiracy to

distribute and possession with intent to distribute more than 1000 kilograms of

marijuana and more than 5 kilograms of cocaine and to one count of money

laundering. His plea agreement states that he “knowingly and voluntarily waives

any right to appeal or collaterally attack any matter in connection with this




*
      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 This order and judgment is not binding precedent, except under the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.
prosecution, conviction and sentence.” M otion to Enforce, Attach. 1 (Plea

Agreement), at 16. M ore specifically, it recites that he “knowingly waives any

right to appeal a sentence imposed which is within the guideline range determined

appropriate by the court,” reserving the right to appeal only “to the extent, if any,

the court departs upwards from the applicable sentencing guideline range

determined by the court.” Id. at 16-17. Goyer appealed, and the government has

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

(10th Cir. 2004). W e grant the motion and dismiss the appeal.

      Under Hahn, we will enforce an appeal waiver if (1) “the disputed appeal

falls within the scope of the waiver of appellate rights”; (2) “the defendant

knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the

waiver would [not] result in a miscarriage of justice.” Id. at 1325. Goyer

contends his appeal waiver was not knowing and voluntary.

      Goyer seeks to appeal the district court’s determination of his base offense

level on the ground that the court improperly calculated the relevant quantity of

drugs attributable to him. He also seeks to appeal the district court’s sentence

enhancements for being an organizer or leader and for obstructing justice. He

contends that his appeal waiver was not knowing and voluntary because it omits

language stating that he is waiving his right to challenge the district court’s

rulings on objections to the pre-sentence report. W ithout this language, he

contends, the appeal waiver is ambiguous and might not be understood by a

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defendant. Response to M otion for Enforcement of Plea Agreement, at 3-5.

Goyer further contends that “the applicable guideline range” phrase is ambiguous

because it assumes no errors by the court in calculating the range.

      W e first note that, in the context of an appeal waiver, this court has

repeatedly “rejected the notion that a defendant must know with specificity the

result he forfeits before his waiver is valid.” United States v. Sandoval, 477 F.3d

1204, 1208 (10th Cir. 2007) (quotation omitted). In Hahn, we rejected the

argument, substantially similar to Goyer’s argument here, that the defendant did

not knowingly and voluntarily waive his appellate rights because he did not know

in advance what sentencing errors the court would make. 359 F.3d at 1326.

      Further, w e find no ambiguity in the appeal waiver provision at issue here.

The provision states in plain and clear English that defendant waives “any” right

to appeal a sentence imposed which is within the guideline range “determined

appropriate by the court.” Plea Agreement, at 16. The latter phrase makes it

clear that the court’s determination of the appropriate guideline range sets the

bounds of the w aiver (permitting appeal only “to the extent, if any, the court

departs upwards from the applicable sentencing guideline range determined by the

court,” Plea A greement, at 17) and is not subject to any reasonable contrary

interpretation. Goyer, in effect, seeks to delete this straightforward and obviously

significant provision from the parties’ agreement.




                                          -3-
      M oreover, at the plea hearing, the district court explained the sentencing

process to Goyer at length, making clear that it would reach its own determination

about the sentence, and that it w as not bound by any party’s recommendation.

The court explained to defendant that he was agreeing to waive his right to

appeal, and asked defendant if he understood that, “the bottom line then out of all

this, the waiver of appeal and the waiver of collateral attack, is the sentence that

this court gives you is, for all intents and purposes, the sentence that you will do.”

M otion to Enforce, Attach. 3 (Plea Hr’g Tr.), at 27. Goyer stated that he

understood this.

      Based on our review of the record, we conclude that Goyer knowingly and

voluntarily waived his right to appeal. Accordingly, the government’s motion is

GRANTED and the appeal is DISM ISSED. The mandate shall issue forthwith.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




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