                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          July 6, 2009
                      UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                       Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                     No. 09-3076
                                                (D.C. No. 6:04-CR-10081-MLB-1)
    CARL J. HARRIS,                                         (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.



         Carl J. Harris, a federal prisoner appearing pro se, has appealed the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion to modify his sentence.

Before this court is the government’s motion to enforce the appeal waiver

contained in Mr. Harris’s plea agreement. We grant the motion.




*
      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 This order and judgment is not binding precedent, except under the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.
      Pursuant to a 2004 plea agreement, Mr. Harris pleaded guilty to possession

of more than fifty grams of cocaine base (crack) with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). He was sentenced to 235 months of

imprisonment, within the advisory guideline range of 188 to 235 months. His

plea agreement contains a waiver of his right to appeal and, inter alia, to modify

his sentence under 18 U.S.C. § 3582(c)(2). This court previously enforced this

appeal waiver in Mr. Harris’s direct appeal, finding that his appeal was within the

scope of the appeal waiver; that he knowingly and voluntarily waived his

appellate rights; and that enforcing the waiver would not result in a miscarriage of

justice. United States v. Harris, No. 05-3036, slip. op. at 2-4 (10th Cir. Sep. 27,

2005) (unpublished order).

      Nonetheless, after the Sentencing Guidelines were amended to lower the

base offense levels for crack offenses, 1 Mr. Harris filed a § 3582(c)(2) motion

requesting that the district court modify his sentence. The district court dismissed

his motion on the ground that Mr. Harris was sentenced as a career offender and,


1
       In an “interim measure to alleviate some of [the] problems” with the
100-to-1 quantity ratio applied for crack offenses as compared to powder cocaine
offenses, the 2007 amendments to Sentencing Guideline § 2D1.1 (effective
November 1, 2007) lowered the base offense levels for crack offenses by two
levels. Notice of Submission to Congress of Amendments to the Sentencing
Guidelines Effective November 1, 2007, 72 Fed. Reg. 28558, 28571-28573
(May 21, 2007). The change means that the base offense levels, which previously
were set so that the sentencing ranges fell above applicable mandatory minimum
terms of imprisonment, were reduced to include the mandatory minimums.
See id. at 28573.

                                         -2-
thus, the amendment would not have the effect of lowering his sentence.

Mr. Harris then filed an appeal of that ruling.

      On appeal, the government has now moved to enforce the § 3582(c)(2)

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

(en banc) (per curiam). 2 Under Hahn, we consider “(1) whether the

disputed [matter] falls within the scope of the waiver . . . ; (2) whether the

defendant knowingly and voluntarily waived his . . . rights; and (3) whether

enforcing the waiver would result in a miscarriage of justice.” Id. at 1325.

                               Within Scope of Waiver

      Mr. Harris’s plea agreement specifically states that he waived his right to

“challenge his sentence or otherwise attempt to modify or change his sentence or

manner in which it was determined in any collateral attack, including but not

limited to . . . a motion brought under Title 18, U.S.C. § 3582(c)(2).” Mot. to

Enforce, Attach. B (Plea Agreement), at 4. He seeks to appeal the denial of his

§ 3582(c)(2) motion to modify his sentence. Thus, his appeal is clearly within the

scope of the waiver.



2
      The district court denied the § 3582(c)(2) motion before the government
entered an appearance, thus, the government did not have an opportunity to seek
to enforce the § 3582(c)(2) waiver in the district court. Accordingly, we do not
consider the government to have waived its right to enforce the plea agreement.
Cf. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 n.3 (10th Cir. 2008)
(allowing government to raise enforcement of appeal waiver in its appellate
response brief).

                                          -3-
                          Knowing and Voluntary Waiver

      Mr. Harris contends his waiver was not made knowingly and voluntarily

because he did not know he was waiving the right to challenge career-offender

sentencing or a disparity in sentencing issue. He claims his attorney never

explained this to him and that he has only an eighth-grade education. In

evaluating whether the waiver was knowing and voluntary, we consider “whether

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

knowingly and voluntarily” and whether there is “an adequate Federal Rule of

Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. Mr. Harris bears the

“‘burden to present evidence from the record establishing that he did not

understand the waiver.’” Id. at 1329 (quoting United States v. Edgar, 348 F.3d

867, 872-73 (10th Cir. 2003)).

      The waiver paragraph in Mr. Harris’s plea agreement specifically states that

he is waiving the right to file a § 3582(c)(2) motion and states that he entered the

waiver knowingly and voluntarily. Plea Agreement at 4. Just before the

signature block, Mr. Harris acknowledged that he had discussed the terms of the

plea agreement with his attorney; that he understood and accepted the terms free

of any threats, duress or coercion; that the agreement embodies all of the

agreements and negotiations between the parties; and that he was pleading guilty

and signing the plea agreement freely and voluntarily. Id. at 6. This language

clearly demonstrates that Mr. Harris entered the agreement, including the

                                          -4-
§ 3582(c)(2) waiver, knowingly and voluntarily. In addition, in his Petition to

Enter a Plea of Guilty, Mr. Harris acknowledged he could be sentenced up to

40 years’ imprisonment, the maximum penalty provided by law; that the sentence

would be solely a matter within the control of the judge; that the judge would take

into account all relevant criminal conduct and criminal history, including prior

convictions; and that his guilty plea was made voluntarily. Mot. to Enforce,

Attach. C., at 3-7. Again, this language clearly demonstrates that Mr. Harris

entered the plea agreement, including the § 3582(c)(2) waiver, knowingly and

voluntarily.

      During the Rule 11 colloquy, the district court confirmed with Mr. Harris

that he knew he could be sentenced to up to 40 years; the court could consider

other relevant conduct when determining the sentence; he was waiving his right to

appeal or come back later and seek to reopen his sentence, and that if the

Sentencing Commission changed the guidelines in the future in a way that would

benefit him, he was waiving his right to file a § 3582 motion to lower his

sentence; in short, that he was agreeing to “never ask any court anywhere to ever

review [his] case.” Mot. to Enforce, Attach. D, at 5, 7, 8-9. This colloquy clearly

demonstrates that Mr. Harris knowingly and voluntarily waived his right to file

a § 3582(c)(2) motion. We conclude that Mr. Harris’s waiver of his right to

bring a § 3582(c)(2) motion was knowing and voluntary.




                                         -5-
                               Miscarriage of Justice

      The miscarriage-of-justice prong requires Mr. Harris 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 waiver rendered the waiver

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

otherwise unlawful and the error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Hahn, 359 F.3d at 1327 (quotation

omitted). Mr. Harris asserts that race was a factor in his sentencing because he is

an African-American who was convicted of a “crack” cocaine offense; thus,

enforcing the waiver would result in a miscarriage of justice. He also asserts

ineffective assistance of counsel in negotiating the waiver.

      Mr. Harris argues his sentence was based on the impermissible factor of

race because the 100-to-1 quantity ratio for powder cocaine and crack cocaine,

whereby one hundred grams of powder cocaine triggers the same mandatory

penalties as one gram of crack, results in racial disparities in sentencing. We

acknowledge the serious concerns underlying this argument. The Sentencing

Commission has urged Congress to reconsider the 100-to-1 quantity ratio

established in the Anti-Drug Abuse Act of 1986, indicating that, among other

reasons for amending the quantity ratio, that the ratio more greatly affects

African-Americans and creates the perception of racial disparities in sentencing.

See, e.g., U.S. Sentencing Comm’n, Report to the Congress: Cocaine and Federal

                                         -6-
Sentencing Policy 102-103 (May 2002) (available at

http://www.ussc.gov/r_congress/02crack/2002crackrpt.httm).

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

however, none of them race. See id. at 90 (listing reasons underlying the 1986

enactment of the 100-to-1 quantity ratio). We conclude that Mr. Harris’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. Harris has presented nothing to show that an

otherwise similarly-situated offender of a different race would have received a

different sentence.

      Mr. Harris contends that his attorney was ineffective because he did not

explain to him that he was giving up the ability to challenge a disparity in

sentencing. Section 3582(c)(2) allows modification of sentences when the

Sentencing Commission later lowers a sentencing range. During his Rule 11

colloquy, Mr. Harris expressly told the judge that he did understand that he was

giving up the right to seek a modified sentence because of an amended Guideline,

and that he did understand he was waiving the right to file a § 3582(c)(2) motion,

even in such circumstance. Thus, the record does not reveal that counsel was

ineffective in connection with the negotiation of the waiver. There is no




                                         -7-
indication the § 3582(c)(2) waiver is unlawful or that enforcing it would seriously

affect the fairness, integrity or public reputation of judicial proceedings.

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

appeal is DISMISSED.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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