                                                                         FILED
                                                 United States Court of Appeals
                     UNITED STATES COURT OF APPEALS      Tenth Circuit

                                                                   January 28, 2009
                            FOR THE TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-6107
                                               (D.C. No. 5:06-CR-00214-HE-1)
    GWAUN DIRON FRIERSON,                               (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Pursuant to a plea agreement, Gwaun Diron Frierson 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 220 months

of imprisonment, below the advisory guideline range of 235 to 293 months. His

plea agreement contains a waiver of his right to move to modify his sentence



*
       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 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
under 18 U.S.C. § 3582(c)(2). Nonetheless, after the applicable Sentencing

Guideline was amended to lower the base offense levels for crack offenses, 1

Frierson filed a § 3582(c)(2) motion requesting that the district court modify his

sentence. The district court dismissed his motion on the ground that its initial

sentencing decision took account of the then-pending amendment and also denied

his motion for reconsideration. Frierson appeals. 2

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

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




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
      Frierson’s notice of appeal was filed more than ten days after the district
court’s order denying his § 3582 motion, and thus it was filed too late to
challenge that decision. See United States v. Espinosa-Talamantes, 319 F.3d
1245, 1246 (10th Cir. 2003) (applying Fed. R. App. P. 4(b)(1)(A)’s ten-day
appeal period to appeals concerning § 3582 motions). The notice was timely to
appeal the denial of reconsideration.

       The government, however, has not argued Frierson’s appeal is untimely.
Because Rule 4(b) is a claim-processing rule rather than a matter of jurisdiction,
the government’s failure to argue timeliness forfeits that contention. United
States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008). We may recognize the
timeliness issue sua sponte, see id. at 750, but we decline to do so in this case.

                                        -2-
(per curiam). 3 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

      The first question is whether this matter falls within the scope of the

waiver. Id. Frierson’s plea agreement describes the court’s sentencing authority,

then states:

      . . . defendant in exchange for the promises and concessions made by
      the United States in this plea agreement, 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 pretrial suppression motions or any other pretrial
      dispositions 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 advisory
      guideline range determined by the Court to apply to this case. . . .



3
       The government did not seek to enforce the § 3582(c)(2) waiver in the
district court because the district court denied the § 3582(c)(2) motion before the
government entered an appearance. It is not clear the government even was aware
of the motion, as Frierson’s certificate of service does not indicate that he served
the government. In these circumstances, we shall not consider the government’s
argument waived for failure to raise it in the district court. See also United States
v. Ibarra-Coronel, 517 F.3d 1218, 1221 n.3 (10th Cir. 2008) (allowing
government to raise enforcement in its appellate response brief).

                                         -3-
R. Vol. 1, Doc. 25 at 3-4 (emphasis added). Frierson filed a § 3582(c)(2) motion

seeking to modify the sentence imposed by the district court, which was below

the advisory Guideline range the court had established. Accordingly, this matter

is within the scope of the waiver.

                          Knowing and Voluntary Waiver

      The second question is whether the waiver was knowing and voluntary.

Hahn, 359 F.3d at 1325. In evaluating this question, we consider “whether the

language of the plea agreement states that [he] entered the agreement knowingly

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

Procedure 11 colloquy.” Id. Frierson 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 Frierson’s plea agreement specifically cites

§ 3582(c)(2) and states he entered the waiver knowingly and voluntarily.

R. Vol. 1, Doc. 25 at 3. Just before the signature block, he acknowledged he

had discussed the terms of the plea agreement with his attorney and he understood

and accepted them, and “there are no other deals, bargains, agreements, or

understandings which modify or alter these terms.” Id. at 9. This language

indicates Frierson entered the agreement, including the § 3582(c)(2) waiver,

knowingly and voluntarily. In addition, in his Petition to Enter a Plea of Guilty,




                                         -4-
he acknowledged his guilty plea was made voluntarily, free of force, threats,

coercion, or promises outside of the plea agreement. Id., Doc. 26 at 8-9.

      During the Rule 11 colloquy, the district court confirmed he was entering

his guilty plea voluntarily and was under no threat or coercion. R. Vol. 2 at 11.

At the court’s request the prosecutor summarized the terms of the plea agreement,

specifically including the appellate and collateral-attack waiver. Id. at 12.

Frierson confirmed the summary was consistent with his understanding of his

agreement. Id. at 13. The district court then further addressed the appeal aspect

of the waiver. Id. While the court did not explicitly discuss the § 3582(c)(2)

aspect of the waiver during the colloquy, this failure does not render the waiver

unknowing and involuntary given the specific reference to § 3582(c)(2) in the

plea agreement and Frierson’s written and oral averments regarding the knowing

and voluntary nature of his actions. Cf. United States v. Chavez-Salais, 337 F.3d

1170, 1173 (10th Cir. 2003) (refusing to enforce waiver that did not refer to §

3582(c)(2), but noting that, had the plea agreement done so, “we would likely find

that Defendant had waived his right to bring the instant motion”). Moreover,

there is nothing in the record to show that Frierson would not have pleaded guilty

if the Rule 11 colloquy had specifically addressed the § 3582(c)(2) waiver.

      Frierson received substantial consideration for entering into the plea

agreement. In exchange for his waiver of his rights to trial, appeal, and collateral

attack, including the right to bring a § 3582(c)(2) motion, the government agreed

                                         -5-
not to prosecute him for any other drug or firearms violations for the period

stretching from January 1, 2005, through August 30, 2006. It also agreed, with

certain limitations, not to use against him statements he made in connection with

the plea agreement. Further, he received a two-level reduction for acceptance of

responsibility. It does not appear that Frierson has requested to withdraw his plea

or otherwise surrender any of these benefits.

      In sum, there is no record evidence contradicting the written and verbal

assertions of a knowing and voluntary waiver, see Edgar, 348 F.3d at 873, and

thus we conclude Frierson’s waiver of his right to bring a § 3582(c)(2) motion

was knowing and voluntary.

                               Miscarriage of Justice

      Finally, we consider whether enforcing the waiver would result in a

miscarriage of justice. Hahn, 359 F.3d at 1325. The miscarriage-of-justice prong

requires Frierson 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.”

Id. at 1327 (quotation omitted).

      Frierson argues his sentence was based on the impermissible factor of race

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

                                          -6-
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. Since at least 1995,

the Sentencing Commission repeatedly has urged Congress to reconsider the

100-to-1 quantity ratio established in the Anti-Drug Abuse Act of 1986. Each

Commission report indicates, 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 U.S. Sentencing Comm’n,

Special Report to the Congress: Cocaine and Federal Sentencing Policy

192 (Feb. 1995); see also U.S. Sentencing Comm’n, Special Report to the

Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997);

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

Sentencing Policy 102-03 (May 2002) (“May 2002 Report”); U.S. Sentencing

Comm’n, Report to the Congress: Cocaine and Federal Sentencing Policy B-17

to B-19, C-4 (May 2007).

      The question, however, is whether such racial disparities satisfy Hahn’s

requirement that the sentence “relied on” an impermissible factor. 359 F.3d at

1327. We do not think that it does. The 100-to-1 quantity ratio was imposed for

a number of different reasons, none of them race. See May 2002 Report at 90

(listing reasons underlying the 1986 enactment of the 100-to-1 quantity ratio).

We do not contest the Sentencing Commission’s position that the implementation

                                         -7-
of the quantity ratio more greatly impacts African-Americans across the justice

system as a whole. But that does not necessarily mean that Frierson’s sentence

“relied 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 Frierson has presented nothing to show that an

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

different sentence.

      Frierson also argues he did not intend to waive his right to bring a

§ 3582(c)(2) motion based on decreased offense levels, and thus enforcing the

waiver would result in a “miscarriage of justice of unintended consequences.”

Reply Br. at 1. This argument is not persuasive. Section 3582(c)(2) focuses on

allowing modification of sentences when the Sentencing Commission later lowers

a sentencing range. Therefore, missing the opportunity to seek a modified

sentence because of an amended Guideline, is not an “unintended consequence”

of a § 3582(c)(2) waiver, particularly in these circumstances. Given that three of

the Sentencing Commission’s four reports were filed well before Frierson’s

September 2006 guilty plea, the problems surrounding the 100-to-1 quantity ratio,

and the Sentencing Commission’s efforts to lower the ratio, were well-known

when Frierson entered his guilty plea. Further, more than a month before the

entry of the plea, the Sentencing Commission signaled its intention to continue its

                                         -8-
examination of cocaine and federal sentencing policy within the coming year, an

effort that ultimately resulted in the amendment underlying Frierson’s

§ 3582(c)(2) motion. See U.S. Sentencing Comm’n, Notice of Proposed

Priorities; Request for Public Comment, 71 Fed. Reg. 44344, 44344 (Aug. 4,

2006); see also U.S. Sentencing Comm’n, Notice of Final Priorities, 71 Fed. Reg.

56578, 56578 (Sept. 27, 2006).

      In sum, accepting the § 3582(c)(2) waiver necessarily means waiving the

opportunity to take advantage of whatever favorable Guidelines changes may

occur. To the extent that Frierson argues it is unfair to hold him to his agreement

where a subsequent amendment would have a significant impact on his sentence,

we have held that appellate waivers are enforceable even though a defendant did

not know exactly how the waiver might apply. See Hahn, 359 F.3d at 1326

(rejecting the argument that an advance waiver cannot be “knowing and

voluntary” because the defendant “cannot possibly know in advance what errors a

district court might make”).

      As for the remaining factors, the sentence did not exceed the statutory

maximum and the record does not reveal that counsel was ineffective in

connection with the negotiation of the waiver. There is no indication the

§ 3582(c)(2) waiver was unlawful or that enforcing it would seriously affect the

fairness, integrity or public reputation of judicial proceedings, particularly in light

of benefits he received in anticipation of the amendment to the Guidelines. His

                                          -9-
contention that he did not receive any benefit from the pending amendment is

based on incorrect calculations. The sentencing transcript shows that he was

sentenced at offense level 36, not level 35 as he suggests. Sent. Tr. at 80.

Accordingly, the Guideline range was 235 to 293 months, and the 220-month

sentence he received reflected a downward departure of fifteen months. The

Sentencing Commission estimated the amendment would lower the average crack

offender’s sentence by fifteen months. Notice of Submission to Congress of

Amendments to the Sentencing Guidelines Effective November 1, 2007,

72 Fed. Reg. 28558, 28573 (May 21, 2007). 4

      The motion to enforce plea agreement is GRANTED and the appeal is

DISMISSED.


                                                     Entered for the Court



                                                     Terrence L. O’Brien
                                                     Circuit Judge




4
       If we were to reach the merits of this appeal, we would not fault the district
court for considering prior sentencing reductions in declining to further reduce a
sentence under the amended crack cocaine offense levels. It would be difficult to
satisfy the commentary to Sentencing Guideline § 1B1.10, which requires the
court to consider the statutory sentencing factors, without considering the length
of the sentence already imposed and the reductions already applied. Sentencing
Guideline § 1B1.10 thus presupposes consideration of prior sentence reductions.

                                         -10-
