                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            February 8, 2006
                                  TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 05-5032
          v.                                              (N.D. Oklahoma)
 ANTHONY VINCENT ROBINSON,                          (D.C. No. 04-CR-102-SEH)

               Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On September 24, 2004, Anthony Vincent Robinson pleaded guilty to

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and

(b)(2). As part of the plea agreement, Mr. Robinson expressly waived his right to


      *
        This order and judgment is not binding precedent, except under the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.
appeal the district court’s sentence if the sentence was within the guideline range

applicable to the statute of conviction as determined by the district court. Despite

the appellate waiver, Mr. Robinson challenges the district court’s calculation of

his base offense level and criminal history category on appeal. For the reasons

described below, we enforce Mr. Robinson’s waiver of appellate rights and

dismiss his appeal.



                                I. BACKGROUND

      In his September 2004 plea agreement, Mr. Robinson admitted that in

September 2003 he “possessed several graphic image files depicting minors

engaged in sexually explicit conduct. [He] received those images by downloading

them through use of a computer.” Rec. vol. I, doc. 21, at 7 (Plea Agreement, filed

Sept. 24, 2004). He used a computer file-sharing program called “KaZaA” to

download graphic image files “by searching the Internet to find other ‘KaZaA’

users who had graphic image files depicting minors engaged in sexually explicit

conduct.” Id. Between approximately February 2003 and February 2004, he used

the “KaZaA” program to download many of these graphic image files to his

“KaZaA” shared folder. Id. at 7-8. The files in Mr. Robinson’s shared folder

were “immediately . . . available to any individual who was using the ‘KaZaA’

program on a computer and who searched the Internet using certain search terms


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associated with the graphic image files contained in [his] ‘KaZaA’ shared folder.

Id. at 8.

       His plea agreement also contained an express waiver of certain rights to a

direct appeal. It stated:

             In consideration of the promises and concessions made by the
       United States in this plea agreement, the Defendant knowingly and
       voluntarily agrees to the following terms:

       a.    the Defendant waives the right to directly appeal the conviction
             and sentence pursuant to 28 U.S.C. § 1291; and,

       b.    the Defendant waives the right to appeal the sentence when the
             sentence is within the guideline range applicable to the statutes
             of conviction as determined by the district court. The Defendant
             also waives the right to appeal all ex post facto claims related to
             the application of the sentencing guidelines used by the district
             court; and

       c.    the Defendant reserves the right to appeal an upward departure
             by the district court from the sentencing guideline range under
             U.S.S.G. § 5K2; or, when the sentence exceeds the statutory
             maximum . . . .

Id. at 3.

       In the plea agreement, Mr. Robinson further stipulated that (1) his sentence

would “be determined under the United States Sentencing Guidelines;” (2) he

waived “any right to have the facts that determine his offense level . . . be alleged

in an indictment and found by a jury beyond a reasonable doubt;” and (3) he

waived “all constitutional challenges to the United States Sentencing Guidelines.”

Id. at 5.

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      During the plea hearing, the district court informed Mr. Robinson that, by

pleading guilty, he was giving up his rights to a jury under the Sixth Amendment

and consenting to “judicial facts [sic] finding in all respects, both as guilt or

innocence and as to sentencing.” Rec. vol. I, doc. 30, at 5 (Hr’g on Change of

Plea, dated Sept. 24, 2004). The district court specifically directed Mr.

Robinson’s attention to the waivers of constitutional and appellate rights, and Mr.

Robinson stated that he understood the waivers and consulted with his attorney

about them. Id. at 13-14. The court also informed Mr. Robinson that the

maximum statutory penalty for his offense was ten years’ imprisonment and/or a

$250,000 fine. Id. at 9-10.

      After reviewing the terms of the plea agreement with Mr. Robinson, the

court accepted his plea and stated:

      [B]ased upon your admissions, your sworn petition to enter a plea of
      guilty, your demeanor, your clear statements and responsive answers,
      the Court finds that there is a factual basis for your plea of guilty;
      further that your plea of guilty is made voluntarily and with a full
      understanding of the charges against you and with a full knowledge of
      the consequences of such plea of guilty. The Court therefore accepts
      your plea of guilty and finds that you are guilty as charged.

Id. at 17-18.

      The pre-sentence report recommended an offense level of 26 and criminal

history category III, with a sentencing range of 78 to 97 months’ imprisonment.

On February 18, 2005, the district court sentenced Mr. Robinson to 80 months’



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imprisonment, followed by three years’ supervised release. As set forth in the

plea agreement, the government dismissed the remaining eleven counts of the

twelve-count indictment.



                                II. DISCUSSION

      On appeal, Mr. Robinson contends the district court erred by sentencing

him under a base offense level of 17 for “trafficking” materials depicting a minor

engaged in sexually explicit conduct. See U.S.S.G. § 2G2.2. 1 Rather, Mr.

Robinson argues that he should have been sentenced under a base offense level of

15 for “possession” of such materials. See U.S.S.G. § 2G2.4. He also argues that

the district court erred when it (1) added one criminal history point for a deferred

judgment later expunged from his record, and (2) added his prior conviction for

actual physical control of a motor vehicle to his criminal history category’s

calculation.

      The government maintains that we should enforce Mr. Robinson’s appellate

waiver and dismiss his appeal. Because the waiver may be dispositive of Mr.

Robinson’s appeals, we first determine whether to enforce the agreement between

him and the government. See United States v. Clayton, 416 F.3d 1236, 1238 (10th



      1
       The parties do not dispute application of the 2003 edition of the
Guidelines. Effective November 1, 2004, Section 2G2.4 was deleted by
consolidation with Section 2G2.2.

                                         -5-
Cir. 2005) (concluding that the government may enforce a waiver of appellate

rights through its brief on the merits).

      This circuit “generally enforce[s] plea agreements and their concomitant

waivers of appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th

Cir. 2004) (en banc). In considering how to resolve appeals brought by

defendants who have waived certain appellate rights in a plea agreement, we must

determine (1) if an appeal falls within the scope of the appellate waiver; (2)

whether the defendant’s waiver of appellate rights was knowing and voluntary;

and (3) whether enforcement of the appellate waiver would result in a miscarriage

of justice. Id. at 1325. In his reply brief, Mr. Robinson does not challenge the

first two factors under Hahn and only argues that enforcement of the waiver

would constitute a miscarriage of justice. Aplt’s Reply Br. at 1-3.

      1.     Scope of the appellate waiver

      The language of Mr. Robinson’s plea agreement encompasses his appeal.

Under the waiver, he “knowingly and voluntarily waive[d]” his “right to appeal

the sentence when the sentence is within the guideline range applicable to the

statutes of convictions as determined by the district court.” Rec. vol. I, doc. 21,

at 3-4. The waiver contained two exceptions: “the right to appeal an upward

departure by the district court from the sentencing guideline range under U.S.S.G.

§ 5K2; or, when the sentence exceeds the statutory maximum.” Id. Mr.



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Robinson’s claims on appeal–that the district court applied a wrong Guidelines

provision and miscalculated his criminal history category–do not fall within those

exceptions. In addition, the sentence of 80 months’ imprisonment falls within the

“statutory maximum” of ten years’ imprisonment under 18 U.S.C. § 2252(a)(4)(B)

and (b)(2). See United States v. Green, 405 F.3d 1180, 1194 (10th Cir. 2005)

(concluding that the term “statutory maximum,” in a plea agreement permitting an

appeal in the limited circumstance of a sentence exceeding the statutory

maximum, refers to the maximum penalty for the statute of conviction).

      2.    Knowing and voluntary waiver

      In determining whether a defendant’s waiver of his right to appeal is made

knowingly and voluntarily, we consider (1) “whether the language of the plea

agreement states that the defendant entered the agreement knowingly and

voluntarily,” and (2) whether there is “an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. The defendant 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)).

      Mr. Robinson does not contend on appeal that he entered the agreement

unknowingly or involuntarily. As noted above, he stipulated in the plea

agreement that he “knowingly and voluntarily waive[d]” his “right to appeal the



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sentence when the sentence is within the guideline range applicable to the statutes

of convictions as determined by the district court.” Rec. vol. I, doc. 21, at 3-4.

Further, at the plea colloquy, Mr. Robinson stated that he understood the charges,

the factual basis for the plea, and his waiver of constitutional and appellate rights.

Id., doc. 30, at 7-8, 14-15. In light of these acknowledgments, the district court

found that his “plea of guilty [was] made voluntarily and with a full

understanding of the charges against [him] and with a knowledge of the

consequences of such plea of guilty.” Id. at 18. Thus, Mr. Robinson knowingly

and voluntarily waived his appellate rights.

             3.     Miscarriage of justice

      Finally, we consider whether enforcement of Mr. Robinson’s waiver would

result in a miscarriage of justice. Mr. Robinson claims that he “could not

reasonably have been expected to answer in the affirmative if asked when he pled

guilty if he was waiving the rights to appeal use of the wrong guideline or use of

a wrongly-found fact.” Aplt’s Reply Br. at 2.

      “[E]nforcement of an appellate waiver does not result in a miscarriage of

justice unless enforcement would result in one of . . . four situations . . . .” Hahn,

359 F.3d at 1327. Those circumstances include (1) “the district court’s reli[ance]

on an impermissible factor such as race;” (2) “ineffective assistance of counsel in

connection with the negotiation of the [appellate] waiver;” (3) “where the



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sentence exceeds the statutory maximum;” or (4) “where the error is otherwise

unlawful.” Id. (quoting United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir.

2001)). For Mr. Robinson to satisfy the fourth circumstance, the error must

seriously affect the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993); Hahn, 359

F.3d at 1327.

      Mr. Robinson offers no arguments under the first two situations. As to the

third exception, the district court’s sentence did not exceed the statutory

maximum of ten years’ imprisonment. See Green, 405 F.3d at 1194.

      Further, Mr. Robinson cannot show that the waiver is otherwise unlawful

and seriously affects the fairness, integrity, or public reputation of judicial

proceedings. He “bears the burden of persuasion on this point.” United States v.

Maldonado, 410 F.3d 1231, 1233 (10th Cir. 2005).

      The factors we consider include whether the plea agreement stated the
      appropriate statutory maximum, informed the defendant that he was
      giving up multiple constitutional and appellate rights in exchange for
      concessions from the government, and implied that the sentence would
      be imposed in accordance with the guidelines then in effect. We also
      review whether the defendant’s sentence conforms with the terms of the
      plea agreement and the defendant’s understanding of the plea.

Id. at 1234.

      We have carefully reviewed the briefs and record on appeal and conclude

that the sentence complies with the terms of the plea agreement and Mr.

Robinson’s understanding at the plea hearing. The plea agreement appropriately

                                           -9-
stated the statutory maximum of ten years’ imprisonment for his offense, and he

recognized under the agreement that “the Court has the final discretion to impose

any sentence up to the statutory maximum.” Rec. vol. I, doc. 21, at 12. His

sentence was below the statutory maximum, and was within the applicable

Guidelines range of 78 to 97 months as determined by the district court. Further,

the plea agreement stipulated that his sentence would be determined under the

Guidelines.

      Therefore, we enforce Mr. Robinson’s appellate waiver with respect to the

issues raised on his appeal because (1) his sentencing challenges fall within the

scope of the waiver, (2) he knowingly and voluntarily waived his appellate rights,

and (3) enforcement of the waiver does not result in a miscarriage of justice.



                               III. CONCLUSION

      Accordingly, we ENFORCE Mr. Robinson’s waiver of appellate rights and

DISMISS the appeal.



                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




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