                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 9, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 08-3226
    v.                                        (D.C. No. 6:08-CR-10005-WEB-1)
                                                          (D. Kan.)
    KAINE K. KIENTZ,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.



         Defendant Kaine K. Kientz pleaded guilty to possession of child

pornography that was transported in interstate commerce, in violation of

18 U.S.C. § 2252(a)(4)(B). In his plea agreement, defendant agreed to waive his

right to appeal. Nonetheless, defendant has filed a notice of appeal. The

government has now moved to enforce defendant’s appeal waiver under United



*
      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 This order and judgment is not binding precedent, except under the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.
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant

the motion and dismiss the appeal.

      Defendant stated in his plea agreement that he:

      knowingly and voluntarily waives any right to appeal or collaterally
      attack any matter in connection with this prosecution, the defendant’s
      conviction, or the components of the sentence to be imposed
      herein. . . . By entering into this agreement, the defendant knowingly
      waives any right to appeal a sentence imposed which is within the
      guideline range determined appropriate by the court. . . . In other
      words, the defendant waives the right to appeal the sentence imposed
      in this case except to the extent, if any, the court departs upward
      from the applicable sentencing guideline range determined by the
      court.

Mot. to Enforce, Attach. 1 (Plea Agreement) at 5. The district court imposed a

sentence of 120 months of incarceration, which was at the maximum statutory

penalty of ten years and well below the advisory guideline range of 324 to 405

months of incarceration determined by the court.

      Under Hahn, we consider “(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.” 359 F.3d at 1325. The

miscarriage-of-justice prong requires the defendant to show (a) “the district court

relied on an impermissible factor such as race”; (b) “ineffective assistance of

counsel in connection with the negotiation of the waiver renders the waiver

invalid”; (c) his “sentence exceeds the statutory maximum”; or (d) his appeal


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“waiver is otherwise unlawful” and the error “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id. at 1327 (quotations

omitted). The government’s motion addresses these considerations, explaining

why none undermines defendant’s appeal waiver here.

      Defendant asserts that the issue he seeks to raise on appeal – an allegation

that the district court misapplied the sentencing guidelines – does not fall within

the scope of his waiver. He further contends that the waiver is “otherwise

unlawful” under Hahn’s miscarriage-of-justice prong because he should be able to

appeal the district court’s misapplication of the guidelines.

      Defendant’s arguments are without merit. The issue that he seeks to appeal

falls squarely within the plain language of the appeal waiver, which specifically

includes a waiver of the right to appeal any matter in connection with his

sentence, including the components of the sentence, with the single exception

being if the court departs upward from the applicable sentencing guideline that

the court itself determines to apply. The sentence imposed was well below the

sentencing guideline range and at the statutory maximum. Thus, defendant’s

appeal falls within the scope of the appeal waiver.

      The miscarriage-of-justice exception defendant invokes looks to whether

“the waiver is otherwise unlawful,” id. at 1327 (quotation omitted and emphasis

added), not whether some other aspect of the proceeding may have involved legal

error. Defendant’s argument that his appeal waiver should be excused due to

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alleged misapplication of the sentencing guidelines does not support the

miscarriage-of-justice exception because his claim only concerns the correctness

of his sentence; he has not asserted any claim regarding the relevant issue of

whether the appeal waiver itself was unlawful. See United States v. Porter,

405 F.3d 1136, 1144 (10th Cir. 2005) (“The relevant question . . . is not whether

[defendant’s] sentence is unlawful . . . , but whether . . . his appeal waiver itself

[is] unenforceable.”). His argument entails what Hahn noted as “the logical

failing[] of focusing on the result of a proceeding, rather than on the right

relinquished, in analyzing whether an appeal waiver is [valid].” Hahn, 359 F.3d

at 1326 n.12. To hold that alleged errors under the sentencing guidelines render

an appeal waiver unlawful would nullify the waiver based upon the very sort of

claim it was intended to waive. In short, defendant has not shown that

enforcement of the waiver would seriously affect the fairness, integrity, or public

reputation of the judicial proceedings.

      Accordingly, the government’s motion to enforce the waiver is GRANTED

and the appeal is DISMISSED.


                                          ENTERED FOR THE COURT
                                          PER CURIAM




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