                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 27, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 08-3127
    v.                                         (D.C. No. 6:07-CR-10079-WEB-1)
                                                           (D. Kan.)
    WILBUR D. HILST,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, EBEL, and HOLMES, Circuit Judges.



         Dr. Wilber D. Hilst pleaded guilty pursuant to a plea agreement to

conspiracy to distribute controlled substances outside the course of normal

medical practice in violation of 21 U.S.C. § 846 and agreed to forfeit $20,129.32

under 21 U.S.C. § 853. The district court sentenced him to thirty-three months’

imprisonment. Although his sentence was within the guideline range and the plea



*
      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 This order and judgment is not binding precedent, except under the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.
agreement waived any right to appeal a sentence within that range, Dr. Hilst

appealed.

      The government has moved to enforce the plea agreement under United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Hahn

held that “in reviewing appeals brought after a defendant has entered into an

appeal waiver,” this court will determine “(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. Because

Dr. Hilst’s appeal is within the scope of the appeal waiver, he waived his

appellate rights knowingly and voluntarily, and enforcing the waiver would not

result in a miscarriage of justice, we grant the government’s motion to enforce the

plea agreement.

                                          I.

      Dr. Hilst argues that his sentence exceeded the advisory guideline range

and, therefore, this appeal does not fall within the scope of his waiver of appellate

rights. Specifically, he asserts that the district court miscalculated the amount of

drugs involved. In his plea agreement, however, Dr. Hilst stated that he

      knowingly and voluntarily waive[d] any right to appeal . . . any
      matter in connection with this prosecution, [his] conviction, or the
      components of the sentence . . . . By entering into this agreement,
      [he] knowingly waive[d] any right to appeal a sentence imposed
      which is within the guideline range determined appropriate by the

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      court. . . . [He] waive[d] the right to appeal the sentence imposed in
      this case except to the extent, if any, the court depart[ed] upwards
      from the applicable sentencing guideline range determined by the
      court.

Plea Agreement at 7. Further, Dr. Hilst “underst[ood] that the sentence to be

imposed [would] be determined solely by the United States District Judge.”

Id. at 5. Dr. Hilst’s arguments relate to his sentence, which was not an upward

departure from the guideline range and which was within the range determined to

be appropriate by the district court. Therefore, his arguments are within the scope

of the appeal waiver.

                                         II.

      Dr. Hilst also argues that the appeal waiver was not made knowingly and

voluntarily. He maintains the charges against his seventy-seven year old wife,

who is in poor health, along with the threat of her incarceration, coerced him to

plead guilty in exchange for dismissal of the charges against her. Further, he

contends that his own advanced age of seventy-six and his own ill health made

him even more vulnerable to coercion.

      In considering whether a defendant knowingly and voluntarily waived his

appellate rights, we consider “whether the language of the plea agreement states

that the defendant entered the agreement knowingly and voluntarily” and whether

there was an adequate colloquy during the plea hearing. Hahn, 359 F.3d at 1325.

The defendant bears the burden of proving that his plea was not knowingly and


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voluntarily entered. United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir.

2003).

         Dr. Hilst failed to meet this burden. In his Petition to Enter Plea of Guilty

and Order Entering Plea, Dr. Hilst represented that he had not been promised a

lighter sentence or probation or other form of leniency for his guilty plea and that

the sentence was solely a matter for the judge. Even though he hoped for

leniency, he stated that he would accept the punishment imposed by the court.

Also, he stated that he was pleading guilty freely and voluntarily.

         In the plea agreement, the parties requested that Dr. Hilst’s sentence be

based on the guidelines and stated that they would ask the district court to impose

a sentence within the guideline range determined to be appropriate by the United

States Probation Department. Dr. Hilst indicated that he understood that the

district court would determine the sentence to be imposed. Also, he indicated that

he did not enter into the plea agreement as a result of threats, duress, or coercion

and that he was freely and voluntarily pleading guilty.

         Similarly, at the plea colloquy, Dr. Hilst stated that no one had promised

that he would receive a lighter sentence, probation, or other leniency by pleading

guilty, and, if someone had, they had no authority to do so. He also stated that he

understood that the sentence he received was to be decided solely by the district

court. Although he hoped to receive leniency, he stated that he was prepared to

accept any punishment permitted by law that the court imposed, and that he knew

                                            -4-
he was giving up his right to appeal his conviction and sentence. Dr. Hilst further

testified that his plea was entered freely and voluntarily with a full understanding

of all consequences.

      Thus, nothing in the plea agreement or plea colloquy suggests that Dr. Hilst

did not knowingly and voluntarily enter into the plea agreement. Indeed, no

record evidence indicates that he pleaded guilty in exchange for the dropping of

charges against his wife. And neither the plea agreement nor the plea colloquy

even mentions Dr. Hilst’s wife as a basis for the plea and neither suggests

Dr. Hilst’s health or age affected his ability to knowingly or voluntarily plead

guilty.

                                          III.

      Lastly, Dr. Hilst argues that enforcing the appeal waiver would result in a

miscarriage of justice. A miscarriage of justice will result if (1) “the district

court relied on an impermissible factor such as race”; (2) “ineffective assistance

of counsel in connection with the negotiation of the waiver renders the waiver

invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is

otherwise unlawful.” Hahn, 359 F.3d at 1327 (quotation marks omitted).

Dr. Hilst focuses on the last two. He contends that his thirty-three month

sentence exceeds the statutory maximum and is excessive in light of his age, his

physical condition, his family obligations, and other mitigating factors.




                                          -5-
       Dr. Hilst’s thirty-three month sentence does not exceed the statutory

maximum of three years. The plea record clearly shows that he understood at the

time of his plea that three years was the statutory maximum.

       Additionally, Dr. Hilst’s waiver is not otherwise unlawful. To be otherwise

unlawful, “the error must seriously affect the fairness, integrity or public

reputation of judicial proceedings.” Id. at 1327 (quotation marks and brackets

omitted). Dr. Hilst has not met his burden to persuade us that the waiver itself is

“otherwise unlawful.” See United States v. Maldonado, 410 F.3d 1231, 1233

(10th Cir. 2005) (per curiam).

       His arguments focus on the length of his sentence. “The relevant

question . . . is not whether [his] sentence is unlawful . . . , but whether . . . his

appeal waiver itself [is] unenforceable.” United States v. Porter, 405 F.3d 1136,

1144 (10th Cir. 2005). Allowing an alleged sentencing error to render the waiver

unlawful would nullify the waiver based on the very type of claim the waiver was

intended to waive. Thus, Dr. Hilst’s objections to the length of his sentence do

not establish that enforcement of his appeal waiver is unlawful. See Hahn,

359 F.3d at 1328 (rejecting “any notion that a defendant must know with

specificity the result he forfeits before his waiver is valid”). Also, his sentence

conformed to the plea agreement’s terms and his understanding of the plea. See

Maldonado, 410 F.3d at 1234.




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     Accordingly, we GRANT the government’s motion to enforce the plea

agreement and DISMISS this appeal.


                                     ENTERED FOR THE COURT
                                     PER CURIAM




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