                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       September 20, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,
          Plaintiff-Appellee,                           No. 04-7086
 v.                                               (D.C. No. 04-CR-30-W)
 JERRY DON BICE,                                        (E.D. Okla.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      On February 27, 2004, Defendant pled guilty to one count of using a

telephone to facilitate the commission of a drug offense in violation of 21 U.S.C.

§ 843(b). Because of Defendant’s prior criminal convictions, the government



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
filed a 21 U.S.C. § 851 information. This filing placed a statutory maximum of

eight years on Defendant’s sentence.

      At sentencing, Defendant objected to several paragraphs of the Presentence

Report alleging that they contained inadmissable hearsay. Defendant also

objected to the sentencing process as being violative of Blakely v. Washington,

542 U.S. 296 (2004), and United States v. Ameline, 376 F.3d 967 (9th Cir. 2004),

overruled by United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005), because the

district court could and did determine the quantity of drugs involved by a

preponderance-of-the-evidence standard. Rec., Vol. I, Tab 12, at 3. The district

court overruled Defendant’s objections. Id., Vol. III, at 98-103. Defendant was

subsequently sentenced to ninety-six months’ incarceration to be followed by a

twenty-four-month term of supervised release. Id. at 107-108.

      On appeal, Defendant raises the same arguments. Before we address the

merits of Defendant’s appeal, however, we must determine, as requested by the

government, whether Defendant waived his appellate rights. Paragraph No. 16 of

the plea agreement states:

      Defendant expressly waives the right to appeal defendant’s sentence
      on any ground, except to challenge an upward departure from the
      appli-cable [sic] guideline range as determined by the Court.
      Defendant specifically waives any appeal rights conferred by Title
      18, United States Code, Section 3742, any post-conviction
      proceedings, and any habeas corpus proceedings.

Aple. Br., Tab A, at 7 (“Plea Agreement”). The government contends that this

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language in the plea agreement demonstrates Defendant’s intent to waive his right

to appeal the issues presented to this court.

       Our general rule favors enforcing “plea agreements and their concomitant

waivers of appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th

Cir. 2004) (en banc). In deciding whether it is appropriate to enforce a waiver,

we must 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 . . . .” Id. at 1325.

       The broad language of Defendant’s waiver, “Defendant expressly waives

the right to appeal defendant’s sentence on any ground, except to challenge an

upward departure from the applicable guideline range as determined by the

Court,” Aple. Br., Tab A, at 7 (“Plea Agreement”) (emphasis added), clearly

demonstrates his intent to waive all potential issues on appeal except for the one

basis specifically exempted. Because his current argument on appeal does not

relate to a challenge of an upward departure, Defendant’s current issues on appeal

are within the scope of his waiver.

       Defendant has not argued that his waiver was not knowingly and

voluntarily given; therefore, we need not address this issue and presume it

admitted. United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004)


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(determining that appellant effectively admitted to knowingly and voluntarily

waiving his appellate rights because he did not contest the issue).

       Finally, Defendant has also failed to argue that enforcement of the waiver

will result in a miscarriage of justice. We have outlined the following four

situations where we will not enforce a waiver because doing so would result in a

miscarriage of justice: “‘[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.’” 1

Hahn, 359 F.3d at 1327 (quoting United States v. Elliott, 264 F.3d 1171, 1173

(10th Cir. 2001)). After reviewing the facts of this case, we conclude that the

record does not support an argument sufficient to demonstrate a miscarriage of

justice.




       1
        In outlining what is sufficient to establish the fourth exception to the
waiver rule, we held that “‘the error [must] seriously affect[] the fairness,
integrity or public reputation of [the] judicial proceedings.’” Hahn, 359 F.3d at
1327 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

                                         -4-
     Accordingly, we enforce Defendant’s waiver of his appellate rights found

in his Plea Agreement and DISMISS this appeal.




                                            Entered for the Court



                                            Monroe G. McKay
                                            Circuit Judge




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