                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 20, 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. 06-3171
                                               (D.C. No. 05-CR-40033-01-SAC)
    SH A W N L. D IG H ER A,                              (D . Kan.)

                Defendant-Appellant.



                               OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and O’BRIEN, Circuit Judges.




         Defendant pled guilty to using a telephone in the commission of a drug

felony in violation of 21 U.S.C. § 843(b). His plea agreement states that he

“knowingly and voluntarily waives any right to appeal or collaterally attack any

matter in connection with this prosecution, conviction and sentence.” Plea

Agreement at 9-10 (dated and filed Jan. 18, 2006). M ore specifically, it recites




*
      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 This order and judgment is not binding precedent, except under the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.
that he “knowingly waives any right to appeal a sentence imposed which is w ithin

the guideline range determined appropriate by the court,” reserving the right to

appeal only “to the extent, if any, the courts departs upward from the applicable

sentencing guideline range determined by the court.” Id. at 10. He stipulated to

the applicability of an eight-year sentence under 21 U.S.C. § 843(d)(1) due to a

prior drug felony conviction. Id. at 5. The district court imposed the eight-year

sentence. Defendant appealed and the government moved to enforce his 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.

      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.” Id. at 1325. The miscarriage-of-justice

prong 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 unlaw ful.

Id. at 1327. The government’s motion addresses all of these considerations,

explaining why none of them undermine defendant’s appeal waiver. Upon review

of the pertinent plea and sentencing materials, we agree.




                                         -2-
      The only argument advanced in defendant’s opposition to the government’s

motion relates to the first prong of the Hahn test. Defendant seeks to challenge

the district court’s specification of his base offense level on the ground that the

court failed to properly calculate the relevant quantity of methamphetamine

involved. He contends, without supporting authority or reasoned argument, that

his appeal waiver does not encompass “his right to appeal the issue of whether the

guideline range was properly determined by the court.” Response to M otion for

Enforcement of Plea Agreement at 2. To the contrary, this issue not only falls

within the broad scope of his catch-all waiver of “any matter in connection with

. . . [his] sentence,” it falls squarely within the specific waiver with respect to any

“sentence imposed . . . within the guideline range determined appropriate by the

court.” Plea Agreement at 9, 10 (emphasis added). The emphasized language

makes it clear that the court’s determination of the appropriate guideline range

sets the bounds of the waiver (permitting appeal only “to the extent, if any, the

court departs upward from the applicable sentencing guideline range determined

by the court,” id. at 10) and is not itself subject to challenge. Defendant, in

effect, seeks to delete this straightforward and obviously significant provision

from the parties’ agreement.

      Turning to the second part of the Hahn test, the government contends that

there is no grounds to doubt the knowing and voluntary nature of defendant’s plea

and associated appeal waiver, and defendant has not disputed the point. W e have

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reviewed the 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 – and agree that they do not reflect any deficiencies that would invalidate

the waiver.

      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, the sentence was

within the statutory maximum, and there is no suggestion that counsel was

ineffective in any way with respect to his plea. The only remaining basis for

finding a miscarriage of justice, i.e., that the waiver is “otherw ise 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. As noted, the nuts-and-bolts sentencing issue to

be raised on appeal falls squarely within the scope of those matters defendant

deliberately waived in exchange for the substantial benefits of the plea agreement,

including the avoidance of a career criminal prosecution. 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




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