                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 September 2, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,
                                                          No. 11-3153
    v.                                          (D.C. No. 5:10-CR-40028-JAR-1)
                                                            (D. Kan.)
    JASON EUGENE VERMILLION,

                Defendant!Appellant .


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and HARTZ, Circuit Judges.



         After accepting a plea agreement that included a waiver of his right to

appeal, Jason Eugene Vermillion pleaded guilty to one count of conspiracy to

distribute 500 grams or more of a mixture and substance containing a detectable

amount of methamphetamine, a violation of 21 U.S.C. § 846. He was sentenced

to the term of imprisonment proposed in the plea agreement, 180 months. Despite



*
      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 This order and judgment is not binding precedent, except under the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.
the waiver, he appealed. The government now has moved to enforce the appeal

waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)

(en banc) (per curiam).

      Under Hahn, in evaluating a motion to enforce a 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 appellate

rights; and (3) whether enforcing the waiver would result in a miscarriage of

justice.” Id. at 1325. Mr. Vermillion contends that his appeal does not fall within

the scope of the appeal waiver and that his plea was not knowing and voluntary.

He concedes that the miscarriage-of-justice factor is inapplicable in this case.

                                Scope of the Waiver

      Mr. Vermillion seeks to raise one argument on direct appeal: that the

district court erred in refusing to order the presentence report (PSR) to be

amended to delete a reference to him having been arrested for another crime,

when those prior charges had been dismissed. Mr. Vermillion believes that this

information could be prejudicial to his prison placement. He contends that this

limited issue does not fall within the scope of his appeal waiver.

      Mr. Vermillion’s appeal waiver is quite broad:

            The defendant 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 including the length and conditions of
      supervised release. The defendant is aware that Title 18, U.S.C.

                                         -2-
      § 3742 affords a defendant the right to appeal the conviction and
      sentence imposed. 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
      upwards from the applicable sentencing guideline range determined
      by the court. . . .

            Notwithstanding the forgoing [sic] waivers, the parties
      understand that the defendant in no way waives any subsequent
      claims with regards to ineffective assistance of counsel or
      prosecutorial misconduct.

Plea Agt. at 5-6.

      Mr. Vermillion concedes that “[t]he Government correctly points to the

first sentence of the Waiver Clause as the operative text.” Resp. at 6. But he

contends that “[h]e does not challenge the fact of his prosecution, his conviction,

the length of his sentence or the conditions of his supervised release. As such,

[his] appeal does not fall with in [sic] the scope of the waiver.” Id. He also more

specifically discusses why his PSR issue does not fall within the terms

“components of the sentence” and “sentence imposed in this case.”

      Mr. Vermillion ignores, however, the first part of the first sentence of the

waiver, namely his waiver of his right to appeal “any matter in connection with

this prosecution.” Even if his PSR issue does not constitute a component of his

sentence or a part of the sentence imposed in this case, it qualifies as a matter

connected with this prosecution. The issue does not fall into the explicit

exceptions to the waiver listed in the plea agreement (ineffective assistance of

                                          -3-
counsel and prosecutorial misconduct), and Mr. Vermillion was sentenced exactly

as his plea agreement contemplated. Accordingly, this appeal falls within the

scope of the appeal waiver.

                          Knowing and Voluntary Waiver

      Mr. Vermillion also argues that his waiver was not knowing and voluntary

because, during the Fed. R. Crim. P. 11 colloquy, the district court did not insure

that he was fully informed of the nature of the case against him. He asserts that

“it is far from certain that [he] understood the evidence the Government sought to

present,” and “[g]iven the paucity of his understanding of the case against him, it

cannot be fairly stated that [he] knowingly and voluntarily entered into the Plea

Agreement.” Resp. at 10. It is his burden to demonstrate that his waiver was not

knowing and voluntary. See United States v. Edgar, 348 F.3d 867, 872-73

(10th Cir. 2003).

      Although Mr. Vermillion calls into question the voluntariness of his plea,

he does not seek to vacate his plea or to forego the advantages he received from

his plea agreement. Rather, he simply wishes to avoid the appeal waiver. Thus,

the proper focus of this argument is whether he knowingly and voluntarily

accepted the waiver. Whether the district court erred in not further confirming

whether Mr. Vermillion understood the nature of the evidence against him does

not, by itself, make the waiver unknowing and involuntary. See Hahn, 359 F.3d

at 1326 n.12 (describing what it called “the logical failings of focusing on the

                                         -4-
result of a proceeding, rather than on the right relinquished, in analyzing whether

an appeal waiver is unknowing or involuntary”). Further, Mr. Vermillion

misplaces his reliance on United States v. Wilken, 498 F.3d 1160 (10th Cir. 2007),

regarding ambiguities created by a colloquy. Wilken involved the district court’s

error in discussing the waiver itself, not error in discussing some other aspect of

the case. Id. at 1166-69.

      In evaluating whether a waiver is knowing and voluntary, Hahn directs us

to examine the plea agreement and the transcript of the Rule 11 colloquy.

359 F.3d at 1325. Both indicate that Mr. Vermillion knowingly and voluntarily

accepted the appeal waiver. See Plea Agt. at 5 (“The defendant knowingly and

voluntarily waives any right to appeal . . .”); Plea Hr’g Tr. at 9 (acknowledging

the appeal waiver); see also Plea Agt. at 10 (“The defendant is entering into this

agreement knowingly, freely, and voluntarily.”); Plea Hr’g Tr. at 6

(acknowledging that he freely and voluntarily chose to enter into the plea

agreement). Mr. Vermillion has not identified any evidence to the contrary.

      The motion to enforce is GRANTED, and this appeal is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




                                         -5-
