                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 24, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,

    v.                                                  No. 09-3379
                                              (D.C. No. 5:07-CR-40124-JAR-1)
    LENARD CHAUNCY DIXON                                  (D. Kan)

                Defendant!Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.



         Defendant Lenard Chauncy Dixon pleaded guilty to five counts of robbery

in violation of the Hobbs Act, 18 U.S.C. § 1951, and one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g). Under the terms of

his plea agreement, “defendant knowingly and voluntarily waive[d] any right to

appeal or collaterally attack any matter in connection with [his] prosecution, . . .



*
      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 This order and judgment is not binding precedent, except under the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.
conviction, or the components of the sentence.” Mot. to Enforce, Attached Plea

Agreement at 10. Although the plea agreement contained an appeal waiver,

defendant filed a notice of appeal seeking to claim that his sentence is

unreasonable. The United States has moved to enforce the appeal waiver pursuant

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

We grant the government’s motion.

      As permitted by Fed. R. Crim. P. 11(c)(1)(C), the parties proposed that the

court impose a sentence of not less than ten years, nor more than the combined

statutory maximum on all counts of conviction, 110 years, as well as restitution

and five years’ supervised release. Plea Agreement at 7. The district court

sentenced defendant to a combined term of 420 months’ imprisonment, or 35

years. Mot. to Enforce, Attached Sent. Hr’g Tr. at 36.

      Defendant seeks to appeal his sentence as too long. “A defendant may not

appeal [his] sentence if [he] has waived [his] appellate rights in an enforceable

plea agreement.” United States v. Smith, 500 F.3d 1206, 1210 (10th Cir. 2007).

“This Court employs a three-pronged analysis to determine whether to enforce a

waiver of appellate rights.” Id. We examine “(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.” Hahn, 359 F.3d at 1325.




                                         -2-
      Defendant contends that the appeal waiver is outside the scope of the

appeal waiver because the sentence was above the guideline range, claiming

erroneously that the plea agreement permits him to appeal a sentence that is

outside the guideline range. Defendant asserts that the Plea Agreement states:

“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.” Resp. at 2. (emphasis added). Defendant, however,

has added the word “guideline,” which is not in the actual sentence. In the Plea

Agreement, the cited sentence states: “By entering into this agreement, the

defendant knowingly waives any right to appeal a sentence imposed which is

within the range determined appropriate by the court.” Plea Agreement at 10.

This is consistent with the totality of the Plea Agreement, in which the parties

agreed to a proposed sentencing range of 10 to 110 years. Indeed, the Plea

Agreement specifically states that pursuant to Rule 11(c)(1)(C), “the parties are

not requesting imposition of an advisory guideline sentence.” Plea Agreement at

8.

      Based on the parties’ proposed sentencing range in the Plea Agreement, and

all of the factors in 18 U.S.C. § 3553, the district court did impose a sentence

above the advisory guideline range. 1 The sentence it imposed was within the

1
      The maximum term of imprisonment was 20 years for each robbery
conviction and 10 years for the firearms conviction. The presentence report
                                                                    (continued...)

                                         -3-
range proposed by the Plea Agreement and within the range determined

appropriate by the court. Thus, defendant’s appeal falls within the scope of the

Plea Agreement’s appeal waiver.

       Defendant summarily argues that, if this court determines his appeal is

within the scope of the appeal waiver, then the waiver was not knowingly or

voluntarily entered and to enforce it would be a miscarriage of justice. Resp.

at 5. Defendant does not articulate any basis for these arguments; nor do we find

any.

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

waiver in the plea agreement and DISMISS the appeal.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




1
 (...continued)
calculated defendant’s guideline range as 121 to 151 months’ imprisonment.
R. Vol. 2, Doc. 105 at 28.

                                         -4-
