                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 15, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-3081
                                               (D.C. No. 2:07-CR-20067-CM-2)
    RONALD LASLEY,                                         (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


         Before us is the government’s motion to enforce Ronald Lasley’s

post-conviction agreement to waive his right to appeal his conviction and

sentence. We grant the motion.

         In October 2007, Mr. Lasley was convicted on two drug counts:

(1) conspiracy to distribute more than 5 kilograms of cocaine and more than

50 grams of cocaine base; and (2) attempting to possess, with intent to distribute,


*
      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 This order and judgment is not binding precedent, except under the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.
5 kilograms or more of a mixture or substance containing cocaine. In March

2008, Mr. Lasley entered into a post-conviction agreement with the government in

which he agreed to waive his right to appeal or collaterally attack any matter in

connection with prosecution, conviction, or the components of the sentence to be

imposed. 1 Mot. to Enforce, at 2. More specifically, Mr. Lasley waived the right

to appeal any sentence imposed that was within the sentencing guideline range

determined by the court. Id.

      Mr. Lasley was sentenced in March 2009. The district court determined

that Mr. Lasley’s sentencing guideline range was 235 to 293 months, and

sentenced him to 235 months’ imprisonment, at the low end of the guideline

range. Despite the waiver of his appeal rights, Mr. Lasley appealed, and the

government moves to enforce the appeal waiver under United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

      Under Hahn, in determining whether to enforce an appeal waiver, 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




1
      The post-conviction agreement is sealed, see Docket Entry No. 61, entered
March 28, 2008 in United States v. Lasley, No. 2:07-20067-CM-2 (D. Kan.), and
neither party has provided this court with a copy of the sealed agreement. Neither
party disputes the government’s description of the appeal waiver contained in that
post-conviction agreement, however; thus we assume the accuracy of the
government’s recitation of the agreement’s appeal waiver provision.

                                         -2-
appellate rights; and (3) whether enforcing the waiver would result in a

miscarriage of justice.” 359 F.3d at 1325.

      As noted, the plain language of the post-conviction agreement is quite clear

that Mr. Lasley waived his right to appeal his sentence; indeed, Mr. Lasley

concedes that he knowingly and voluntarily waived his appellate rights and that

his proposed appeal falls within the scope of the appeal waiver. Mr. Lasley

contends, however, that a miscarriage of justice would occur if the appeal waiver

is enforced. The miscarriage-of-justice factor requires the defendant to show

(a) his sentence relied on an impermissible factor such as race; (b) ineffective

assistance of counsel in connection with the negotiation of the appeal waiver

rendered the waiver invalid; (c) his sentence exceeded the statutory maximum; or

(d) his appeal waiver is otherwise unlawful and the error “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” Id. at 1327

(quotation omitted).

      Mr. Lasley asserts that the first and fourth factors are met because he is an

African-American who was convicted of a “crack” cocaine offense. He argues

that race was a factor in his sentencing, citing to April 2009, testimony of

Assistant Attorney General Lanny A. Breuer, before a United States Senate

Committee, that the 100-to-1 quantity ratio applied in sentencing crack cocaine

offenses compared to powder cocaine offenses has resulted in racial disparities.

Reply, Attach. 1, Senate Statement, at 9. Mr. Breuer testified that 82 percent of

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individuals convicted of federal crack cocaine offenses are African-Americans,

while only 9 percent are white. Id. He further testified that the Department of

Justice endorses the complete elimination of the sentencing disparity between

crack cocaine and powder cocaine. Id. at 10.

      As an “interim measure to alleviate some of [the] problems” with the

100-to-1 sentencing ratio between crack and powder cocaine offenses, the United

States Sentencing Commission amended the Sentencing Guidelines in 2007, by

providing a 2-level reduction in base offense levels for crack-related offenses.

Notice of Submission to Congress of Amendments to the Sentencing Guidelines

Effective November 1, 2007, 72 Fed. Reg. 28558, 28571-28573 (May 21, 2007);

see also U.S.S.G. § 2D1.1(c) (Nov. 2008) (incorporating amended base offense

levels); U.S.S.G. App. C, Amend. 706 (2007). Mr. Lasley was sentenced under

this amendment.

      We recognize the serious concerns underlying Mr. Lasley’s

miscarriage-of-justice argument, and we do not contest that the implementation of

the 100-to-1 quantity ratio more greatly impacts African-Americans across the

justice system as a whole. Nonetheless, we cannot conclude that the racial

disparities resulting from the 100-to-1 quantity ratio satisfy Hahn’s requirement

that the sentence “relied on” an impermissible factor, such as race. 359 F.3d at

1327. The 100-to-1 quantity ratio was imposed for a number of different reasons,

none of them race. See U.S. Sentencing Comm’n, Report to the Congress:

                                         -4-
Cocaine and Federal Sentencing Policy 90 (May 2002) (listing reasons

underlying the 1986 enactment of the 100-to-1 quantity ratio) (available at

http://www.ussc.gov/r_congress/ 02crack/2002crackrpt.pdf). Mr. Lasley’s

sentence did not “rely on” his race. Cf. United States v. Williamson, 53 F.3d

1500, 1530 (10th Cir. 1995) (“We have repeatedly rejected each of the arguments

necessary to find § 2D1.1 violative of equal protection.”). The levels are applied

regardless of an offender’s race, and Mr. Lasley has presented nothing to show

that an otherwise similarly-situated offender of a different race would have

received a different sentence.

      Mr. Lasley asserts that he could not possibly have anticipated that, after he

was sentenced, the Department of Justice would support the complete elimination

of the sentencing disparity between crack and powder cocaine. The problems

surrounding the 100-to-1 quantity ratio, and the Sentencing Commission’s efforts

to lower the ratio, were well-known when Mr. Lasley entered his post-conviction

appeal waiver. See Kimbrough v. United States, 552 U.S. 85, ___, 128 S.Ct. 558,

568-569 (2007) (discussing the Sentencing Commission’s criticisms of the

sentencing disparity between crack and powder cocaine offenses and the

Commission’s 2007 amendments to the Guidelines on crack offenses.). As noted,

Mr. Lasley was sentenced in accordance with the 2007 amendments. To the

extent that Mr. Lasley is arguing that it would be a miscarriage of justice to hold

him to his agreement simply because the Department of Justice now supports a

                                         -5-
change in the sentencing guidelines, we have held that appellate waivers are

enforceable even though a defendant did not know exactly how the waiver might

apply. See Hahn, 359 F.3d at 1326. We conclude that it would not be a

miscarriage of justice to enforce Mr. Lasley’s appeal waiver.

      Accordingly, the motion to enforce plea agreement is GRANTED and the

appeal is DISMISSED.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




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