                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        May 31, 2006
                            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. 06-6133
                                                         (W .D. Okla.)
    SHELLEY A NN VA NC E,                          (D.C. No. 05-CR-208-M )

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, O’BRIEN, and TYM KOVICH, Circuit Judges.




         Defendant pled guilty to four counts of bank robbery and one count of

carrying/brandishing a firearm. Her plea agreement recited that she “knowingly

and voluntarily waives her right” to appeal (a) “her guilty plea and any other

aspect of her conviction, including but not limited to any rulings on pretrial

suppression motions or any other pretrial dispositions of motions and issues,” and




*
      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 This order and judgment is not binding precedent, except under the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. 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.
(b) “her sentence as 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.” Plea Agreement at 5 (dated

Nov. 14, 2005, and filed in open court December 9, 2005). She was sentenced to

four concurrent 121-month terms for the robberies and an 84-month term on the

firearms offense (and a 5-year term of supervised release), to run consecutively

for a total of 205 months. Defendant then filed this appeal and the government

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

(10th Cir. 2004). For reasons explained below, we grant the motion and dismiss

the appeal accordingly.

      Hahn’s three-part test requires us to consider “(1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether the

defendant knowingly and voluntarily waived [her] appellate rights; and

(3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at

1325. The miscarriage-of-justice prong is satisfied if the defendant shows that

(a) her 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) her sentence exceeded the statutory maximum; or

(d) her appeal waiver is otherw ise unlawful. Id. at 1327. The government’s

motion addresses all of these considerations, explaining why none of them

undermine defendant’s appeal waiver. W e agree.

                                         -2-
      Application of the first part of the Hahn test is straightforward here. On its

face, defendant’s broadly framed w aiver clearly encompasses the judgment and

sentence from which she now seeks to appeal. And, indeed, defendant’s counsel

concedes there is nothing in the record to indicate that the subject of this appeal

falls outside the scope of the waiver. 1 Appellant’s Response to Appellee’s

M otion to Enforce Plea Agreement (Appellant’s Response), at 1.

      Turning to the second part of the Hahn test, regarding the knowing and

voluntary nature of the appeal waiver, the government contends the two primary

record sources relating to the issue – the language of the plea agreement and the

Rule 11 colloquy at the plea hearing, see Hahn, 359 F.3d at 1325 – do not reflect

any deficiencies that would invalidate the waiver. Having reviewed the

materials, 2 we agree with that assessment. M oreover, defendant’s response

concedes that “[n]othing in the record or outside the record indicates [that

defendant] did not knowingly or voluntarily enter into the plea agreement.”

Appellant’s Response, at 2 (emphasis added). The appeal waiver clearly satisfies

the second condition for enforcement.



1
      This court provided defendant with a copy of her counsel’s response to the
government’s motion and gave her an opportunity to supplement it if she wished.
She did not. W e therefore consider the response filed by counsel to fully reflect
counsel’s and defendant’s combined judgment and agreed position with respect to
the matters addressed therein.
2
      To fully inform our review of the motion, we obtained the transcripts of the
plea and sentencing hearings from the district court.

                                          -3-
      Finally, we see no basis on which to find a miscarriage of justice. There is

nothing in the record, and nothing noted by defendant outside the record, to

indicate that an impermissible sentencing factor was involved, and the sentence

imposed was clearly within (indeed significantly under) the statutory maximum.

The government notes that defendant has never suggested counsel was ineffective

in any way with respect to her plea, defendant’s counsel states that he is unaw are

of any allegations in this regard, and defendant has not personally supplemented

counsel’s response to claim otherwise. The only remaining basis for finding a

miscarriage of justice, i.e., that the waiver is “otherwise unlawful,” requires the

demonstration of an error that “seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” Hahn, 359 F.3d at 1329 (citing United

States v. Olano, 507 U.S. 725, 732 (1993)). No potential error of that magnitude

is evident here. The anticipated appellate issues identified by counsel in response

to the government’s motion, involving generic objections to “fact finding

regarding the employment of the firearm and additional allocution,” A ppellant’s

Response at 3, fall squarely within the scope of the issues defendant deliberately

waived in exchange for the benefits of the plea agreement. Concerns of fairness,

integrity, and public reputation favor enforcement of the waiver.




                                          -4-
      The government’s motion to enforce the appeal waiver in defendant’s plea

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

forthwith.


                                            Entered for the Court

                                            Per Curiam




                                      -5-
