                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         March 1, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellant,                      No. 05-6257
          v.                                            W .D. of Okla.
 M ICHA EL PA TR IC K B RU N TON,                (D.C. No. CR-04-223-01-T)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and TYM KOVICH, Circuit Judges. **


      M ichael Patrick Brunton agreed to plead guilty to one count of mail fraud

in violation of 18 U.S.C. § 1341 and to forego his right to appellate review as part

of a plea agreement. The district court subsequently sentenced him to 16 months

in prison and ordered him to pay restitution to his victims.

      Despite having waived his appellate rights in this case, Brunton claims the

district court erred in calculating the amount of losses to his victims. In doing so,




      *
        This order and judgment is not binding precedent, except under the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.
      **
        This matter is submitted on the briefs per the court’s order, dated
October 10, 2006, pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).
he contends the court wrongfully bumped him into a higher sentencing range than

he deserved. 1

      Because we agree with the government that Brunton waived his right to

appeal, we enforce the waiver and dismiss this appeal.

                                   I. Background

      Brunton was indicted on 12 counts of mail and wire fraud after being

caught running an on-line auction scheme whereby he would offer up certain

items for sale (e.g., football tickets, Rolex watches), accept payment from the

winning bidder, but not remit any item in return. Brunton’s criminal conduct first

came to light in late 2002, when two users of the Internet auction eBay

complained that they had ordered and paid for a Rolex watch that they never

received. As authorities began investigating the matter, a host of similar

unconsummated deals were uncovered. United States postal authorities, together

with eBay and PayPal staff, ultimately identified Brunton as the source of the

fraudulent offers.

      Investigators identified 40 victims who never obtained their winning bids.

Pursuant to Brunton’s guilty plea, the government dropped all but one count



      1
         Brunton’s brief refers several times to the district court’s loss calculation
as an error in calculating “restitution.” It is clear from the briefs, however, that
Brunton is challenging on appeal the court’s calculation of the length of his
sentence based on the amount of victim loss under the United States Sentencing
Guidelines, § 2B1.1. To the extent he challenges restitution, his only concern is
with the accuracy of the district court’s calculation of amount.

                                          -2-
against him. In return, Brunton promised not to appeal his sentence or how it was

determined.

      At sentencing, the government attributed the actual losses to Brunton’s

victims as $72,758.91, while intended loss (that which would have resulted but

for cancelled checks, etc.) was $102,126.30. [Gov. Brief at 5.] Brunton

specifically objected to the loss calculations stemming from two victims totaling

$8,765. The district court held a hearing on the amount of loss attributed to the

tw o victims, and then overruled Brunton’s objections.

      Finding the actual losses from Brunton’s crime to exceed $70,000, the

district court determined that Brunton’s sentencing range was 12–18 months. See

United States Sentencing Guidelines (U SSG) § 2B1.1. Had Brunton caused losses

under $70,000, he would have been eligible for a lower guideline range than he

received (8–14 months rather than 12–18 months). Nevertheless, causing losses

above $70,000 (but below $120,000) merited a 2-point enhancement under the

Guidelines with a concomitant increase in the applicable sentencing range. See

USSG § 2B1.1(b)(E). The court went on to sentence Brunton to 16 months in

prison and ordered restitution in the amount of $72,758.91.

      O n appeal, B runton revives his objections to losses attributed to two

victims in the amount of $8,765 to advance his claim that the actual losses were

below the $70,000 threshold. “The D efendant vehemently denie[s] causing loss

above $70,000 to warrant an enhancement [in offense level score] of eight instead

                                         -3-
of the appropriate enhancement of six. Consequently the trial judge was guided

by the wrong guideline range and imposed an excessive sentence.” Aplt. Brief at

5. The government counters that we are precluded from reaching the merits of

Brunton’s claim because of the explicit appellate waiver contained in his plea

agreement.

                                   II. Analysis

      W e have held that if w e find a waiver to be valid and enforceable, w e will

enforce its terms and dismiss an appeal. United States v. Hahn, 359 F.3d 1315,

1329 (10th Cir. 2004).

A. Enforcing Appellate W aivers

      An appellate waiver will be enforced if (1) the disputed appeal falls within

the scope of the waiver; (2) the waiver was made knowingly and voluntarily; and

(3) enforcing the waiver w ill not result in a miscarriage of justice. Hahn, 359

F.3d at 1325.

      W e interpret the terms of a plea agreement “according to contract principles

and what the defendant reasonably understood when he entered his plea.” United

States v. Arevalo-Jimenez, 372 F.3d 1204, 1206 (10th Cir. 2004). M oreover,

while we construe “any ambiguities in these agreements [] against the

Government,” United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. 2005)

(internal quotation omitted), we start by “examin[ing] the plain language of the

plea agreement.” United States v. Taylor, 413 F.3d 1146, 1151 (10th Cir. 2005).

                                         -4-
B. Brunton’s Appellate W aiver

      1. Scope of the W aiver

      For economic crimes, the applicable sentencing range is a function of the

pecuniary loss flowing from the defendant’s conduct. To determine the sentence

here, the district court was required by the Guidelines to calculate the “actual

loss” attributable to the crime, i.e., the “reasonably foreseeable pecuniary harm

that resulted from the offense.” U SSG, § 2B1.1 cmt. 3(A)(I). 2

      Brunton agreed in his appeal waiver not to challenge his sentence or the

manner in w hich it was determined. Specifically, Brunton agreed as follow s:

      [D]efendant in exchange for the promises and concessions made by the
      United States in this plea agreement, knowingly and voluntarily waives
      his right to:
      ***
             (b) Appeal, collaterally challenge, or m ove to modify . . . his
      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.

Aplt. App. at 18 (emphasis added).    The question for us, then, is whether the

instant appeal falls within the scope of this explicit appellate waiver. W e

conclude that it does.

      Firstly, Brunton’s appeal falls squarely within the plain meaning of the

waiver. His appeal is a direct challenge to the manner in which his sentence was

determined. The district court conducted a straightforward application of the

      2
         The restitution award in this case happens to be identical to the loss
calculation used to determine Brunton’s sentencing range under the G uidelines.

                                         -5-
Guidelines in determining the appropriate guideline range, and then, after

determining the amount of loss, exercised its discretion to impose a sentence

within the range.

      Secondly, Brunton’s claim that his sentence exceeded the guideline range is

without merit. The district court concluded that Brunton’s total offense level (13)

and criminal history category (I) yielded a sentencing range of 12–18 months

imprisonment. Ultimately receiving a prison term of 16 months, Brunton plainly

received a sentence “within or below the advisory guideline range determined by

the Court to apply to this case.”

      Thus, the sentence imposed was within the scope of the appellate waiver.

      2. W aiver was Knowing & Voluntary

      “W hen determining whether a waiver of appellate rights is knowing and

voluntary, we especially look to two factors. First, we examine whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily. Second, we look for an adequate Federal Rule of

Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325 (internal citations

omitted).

      The first component of a knowing, voluntary waiver was clearly satisfied

by the express language in Brunton’s plea agreement providing that:

      [D]efendant . . . knowingly and voluntarily waives his right to:
            a. Appeal or collaterally challenge his guilty plea and any other
      aspect of his conviction, including but not limited to any rulings on

                                     -6-
      pretrial suppression motions or any other pretrial disposition of motions
      and issues.
             b. Appeal, collaterally challenge, or move to modify under 18
      U.S.C . § 3582(c)(2) or some other ground, his sentence as imposed by
      the Court and the manner in which the sentence is determined, provided
      the sentence is within or below the applicable guideline range
      determined by the Court to apply to this case. Defendant acknowledges
      that this waiver remains in full effect and is enforceable, even if the
      Court rejects one or more of the positions of the United States or
      defendant set forth in paragraph 7 concerning the application of the
      U.S. Sentencing Guidelines.
             c. It is provided that (i) defendant specifically does not waive the
      right to appeal an upward departure from the sentencing guideline range
      determined by the Court to apply to this case, and (ii) his waiver of
      rights to appeal and to bring collateral challenges based on changes in
      the law reflected in Tenth Circuit or Supreme Court cases decided after
      the date of this agreement that are held by the Tenth Circuit or Supreme
      Court to have retroactive effect.

Aplt. App. at 18 (emphasis added). Brunton was represented by counsel and he

supplies no reason to believe he did not know what rights he was waiving.

      The transcript of the Rule 11 colloquy reinforces our conclusion that

Brunton’s appellate waiver was knowing and voluntary. At the hearing on M arch

8, 2005, the district court specifically addressed the waiver of appeal referenced

in the plea agreement and asked Brunton if he understood it.

      TH E C OU RT: In your plea agreement, you may recall that you have
      waived your right to appeal or collaterally challenge any sentence
      im posed by the Court, except under limited and specified
      circumstances. Do you understand that - -

      BRUNTON: Yes.

      THE COURT: - - as part of your plea agreement? D o you have any
      questions about anything that has taken place in these proceedings?



                                      -7-
      BRUNTON: No.

Plea Tr. at 9. W e are satisfied that Brunton knowingly and voluntarily waived his

right to bring this appeal.

      3. Enforcing the W aiver will not Result in a M iscarriage of Justice

      Finally, we consider whether an appellate waiver will result in a

miscarriage of justice. Under Hahn, a defendant must show (1) the district court

relied on an impermissible factor such as race in computing the sentence, (2)

ineffective assistance of counsel rendered the waiver invalid, (3) the sentence

exceeded the statutory maximum, or (4) the waiver w as otherw ise unlawful.

Hahn, 359 F.3d at 1327 (internal citation omitted).

      Factors one and two are not at issue in this case: Brunton neither argues the

district court relied on an impermissible factor in sentencing, nor does he raise an

ineffective assistance of counsel claim. This limits our miscarriage of justice

analysis to whether the sentence exceeds the statutory maximum or whether the

waiver is otherw ise unlawful.

      Brunton’s prison term of 16 months was far below the statutory maximum

for his offense, which is 20 years. Hahn “refers to the upper limit of punishment

that Congress has legislatively specified for the violation of a given statute.”

United States v. Green, 405 F.3d 1180, 1194 (10th Cir. 2005). The statute under

which Brunton pleaded guilty, 18 U.S.C. § 1341, authorizes a maximum term of

imprisonment of “not more than 20 years” and fines up to $250,000 (pursuant to

                                         -8-
18 U.S.C. § 3571). Brunton’s 16-month prison term obviously falls well below

the statutory maximum for his offense and thus his appellate waiver cannot be

challenged on this basis. And, although the plea agreement does not contain an

expected amount of restitution, Brunton’s challenge is not to the order of

restitution itself, but to the loss calculation under USSG § 2B1.1 and its affect on

the length of his prison sentence.

      As to our catch all “otherw ise unlawful” element, under Hahn “the error

[must] seriously affect[] the fairness, integrity or public reputation of judicial

proceedings.” 359 F.3d at 1327 (internal quotation marks omitted). Brunton

claims the district court committed such error in establishing the loss calculation

and associated sentencing guideline range.

      Brunton misinterprets the miscarriage of justice exception, which looks to

whether “the waiver is otherwise unlawful,” Hahn, 359 F.3d at 1327, not whether

some other aspect of the proceeding may have involved legal error. His claim

that the appellate waiver should be excused due to alleged errors in establishing

his guideline range entails w hat Hahn called “the logical failing[] of focusing on

the result of the proceeding, rather than on the right relinquished, in analyzing

whether an appeal waiver is [valid].” Id. at 1326 n.12. To allow alleged errors in

computing a defendant’s sentence to render a waiver unlawful would nullify the

waiver based on the very sort of claim it was intended to waive. This circular

argument has been rejected in many cases. See, e.g., United States v. M organ,

                                          -9-
386 F.3d 376, 381–82 (2d Cir. 2004); United States v. Andis, 333 F.3d 886, 892

(8th Cir. 2003); United States v. Brown, 232 F.3d 399, 403–04 (4th Cir. 2000);

United States v. Kratz, 179 F.3d 1039, 1041 (7th Cir. 1999).

      Brunton does not allege that the waiver itself is unenforceable, but attacks

the loss calculations under § 2B1.1. This is precisely the type of attack we sought

to foreclose in Hahn and, therefore, we decline to find Brunton has satisfied the

miscarriage of justice exception. 3

                                      III. Conclusion

      Because w e are satisfied that the appeal is within the scope of Brunton’s

appellate waiver and that the district court did not clearly err in calculating the

actual losses, we DISM ISS this appeal.

                                          Entered for the Court

                                          Timothy M . Tymkovich
                                          Circuit Judge




      3
           W e also reject Brunton’s claim that constitutional Booker error plagues
his sentence because but for the district court’s error “the result of the proceeding
would have been different.” United States v. Gonzalez-Huerta, 403 F.3d 727, 733
(10th Cir. 2005). Brunton argues that “with an offense category of 11 [rather than
13] . . . the Court may have been persuaded to grant [him] probation.” Aplt. Brief
at 7. However, the district court dispelled such wishful thinking at sentencing
when it said: “M r. Brunton, I’m going to send you to prison, and I’m going to do
that because punishment is a legitimate goal of sentencing and you deserve it.
And you’ll do this time, and when you come back you can – you can work hard to
make restitution to your victims.” Aplt. A pp. at 50–51.

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