                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           August 24, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-3354
          v.                                             (D. Kansas)
 DARLMON DRAINE,                                (D.C. No. 03-CR-40083-SAC)

               Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges. **


      Darlmon Draine pleaded guilty to possession of a firearm after having been

convicted of a crime punishable by term of imprisonment exceeding one year, a

violation of 18 U.S.C. § 924(g). The plea agreement between the government




      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.


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

unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34( F ). The case is therefore submitted without oral
argument.
and Mr. Draine contained a provision waiving “any right to appeal a sentence

imposed which is within the guideline range determined appropriate by the court.”

Rec. vol. I, doc. 54, at ¶ 9. Applying the United States Sentencing Guidelines,

the district court sentenced him to a term of ninety-six months’ imprisonment.

      Mr. Draine now argues that, in light of United States v. Booker, 125 S. Ct.

738 (2005), the district court violated his Sixth Amendment rights by imposing a

four-point increase in the offense level under USSG § 2K2.1(b)(5) based upon

facts not found by the jury. Upon review of the applicable law, we conclude that

Mr. Draine’s Booker argument is foreclosed by the waiver-of-appeal provision of

his plea agreement. Accordingly, we dismiss this appeal.



                                I. BACKGROUND

      On June 2, 2004, the government and Mr. Draine entered into a plea

agreement that contained the following provision.:

                   Waiver of Appeal and Collateral Attack. Defendant
            knowingly and voluntarily waives any right to appeal or
            collaterally attack any matter in connection with this
            prosecution, conviction and sentence. The defendant is
            aware that Title 18, U.S.C. § 3742 affords a defendant the
            right to appeal the conviction and sentence imposed. 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. The defendant also waives any right to challenge a
            sentence or otherwise attempt to modify or change his
            sentence or manner in which it was determined in any

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             collateral attack, including but not limited to a motion
             brought under Title 28, U.S.C. § 2255 [except as limited
             by United States v. Cockerham, 237 F.3d 1179, 1187
             (10th Cir. 2001)] 1 and a motion brought under Title 18,
             U.S.C. § 3582(c)(2). In other words, the defendant waives
             the right to appeal the sentence imposed in this case except
             to the extent, if any, the court departs upwards from the
             applicable guideline range determined by the court.
             However, if the United States exercises its right to appeal
             the sentence imposed as authorized by Title 18, U.S.C.
             3742(b), the defendant is released from this waiver and
             may appeal the sentence received as authorized by Title
             18, U.S.C.§ 3742(a).

Rec. vol. I, doc. 54, at ¶ 9. Mr. Draine agreed to plead guilty to a § 922(g)

violation, and the government agreed to dismiss the remaining three counts

alleged in the indictment.

      The presentence report recommended a four-point increase in the offense

level pursuant to USSG § 2K2.1(b)(5) on the grounds that Mr. Draine had

possessed a firearm in connection with another felony offense. Mr. Draine

objected. Invoking Blakely v. Washington, 124 S. Ct. 2531 (2004), he argued that

he had not admitted that he had possessed a firearm in connection with a felony

and that as a result, the Sixth Amendment precluded the district court from




      1
         In Cockerham, we held that “a plea agreement waiver of postconviction
rights does not waive the right to bring a § 2255 petition based on ineffective
assistance of counsel claims challenging the validity of the plea or the waiver.”
237 F.3d at 1187. However, we added, “[c]ollateral attacks based on ineffective
assistance of counsel claims that are characterized as falling outside that category
are waivable.” Id.

                                         -3-
making the factual finding necessary to support the corresponding increase in the

offense level.

      The district court rejected Mr. Draine’s argument and adopted the proposed

four-point increase under USSG § 2K2.1(b)(5). However, the court granted Mr.

Draine a three-point decrease in the offense level based upon his acceptance of

responsibility. The court arrived at an offense level of twenty-one, a criminal

history score of VI, and a Guideline range of seventy-seven to ninety-six months.

It sentenced Mr. Draine to 96 months’ incarceration.

      The court also announced that it would impose the same sentence if the

Supreme Court subsequently found the Guidelines unconstitutional:

             In the event that the federal sentencing guidelines are
             found unconstitutional and incapable of being
             constitutionally applied in this sentencing, then the Court
             will impose the following alternative sentence: Pursuant to
             18 U.S.C. § 3553(a) treating the guidelines as advisory
             only, it is the judgment and order of the Court that the
             defendant be sentenced to a period of 96 months and other
             terms and conditions of the original sentence will remain
             the same.

Rec. vol. IV, at 22.



                                 II. DISCUSSION

      On appeal, Mr. Draine argues that in light of Booker, the district court

violated his Sixth Amendment rights by increasing the offense level by relying on



                                         -4-
facts that he had not admitted. He further contends that the district court’s

alternative sentence is unconstitutional. The government responds that Mr.

Draine has waived his right to advance these arguments. We agree.

      “[W]e generally enforce 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 whose

plea agreements contain waiver-of-appeal provisions, we undertake a three-part

inquiry.

      First, we determine whether the defendant’s appeal falls within the scope of

the waiver. Id. at 1325. Second, we ascertain whether the waiver was knowing

and voluntary. Id. Finally, we consider whether enforcement of the waiver would

result in a miscarriage of justice. Id. A miscarriage of justice may result if the

district court relied on an impermissible factor at sentencing, the defendant

received ineffective assistance of counsel in negotiating the waiver provision, the

sentence exceeded the statutory maximum, or the waiver provision was otherwise

unlawful. Id. at 1327.

      We have recently concluded that a waiver-of-appeal provision in a plea

agreement foreclosed a defendant’s challenge to his sentence under Booker. In

United States v. Green, 405 F.3d 1180, 1188-95 (10th Cir. 2005), the defendant’s

plea agreement provided that “[d]efendant agrees to waive all appellate rights



                                         -5-
except those relating to issues raised by the [d]efendant and denied by the

[d]istrict [c]ourt regarding the application of the Sentencing Guidelines.” Id. at

1183.

        We first concluded that the defendant’s Booker arguments “f[e]ll within the

scope of his waiver of appellate rights.” Id. at 1189. We reasoned that

“[w]hether [the] [d]efendant’s sentence violated Booker does not relate to ‘issues

regarding the application of the Sentencing Guidelines.’” Id. (quoting plea

agreement). We agreed with the Eleventh Circuit that “Booker arguments may

fall within the scope of a defendant’s waiver of his or her appellate rights.” Id. at

1189-90 (citing United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.

2005)).

        Next, we concluded that the waiver of appellate rights was knowing and

voluntary. The defendant had signed, dated, and initialed the waiver of appellate

rights. His petition to enter a plea of guilty, which he also signed, stated that he

had offered the plea knowingly and voluntarily. Moreover, at the plea hearing the

district court had asked the defendant whether he understood the appellate rights

waiver, and the defendant had responded affirmatively.

        We also noted that Blakely and Booker were decided after the defendant

entered the plea agreement. That fact did not undermine our conclusion that the

waiver of appellate rights was knowing and voluntary. “The Supreme Court has



                                          -6-
made it clear that a defendant’s decision to give up some of his rights in

connection with making a plea—including the right to appeal from the judgment

following that plea—remains voluntary or intelligent and knowing despite

subsequent developments in the law.” Green, 405 F.3d at 1190.

      Additionally, we concluded that the defendant’s waiver of appellate rights

would not result in a miscarriage of justice. The district court had not relied on

impermissible factors, and no allegations of ineffective assistance of counsel in

negotiating the waiver of appellate rights provision were presented to the court.

Id. at 1191. Moreover, the sentence imposed had not exceeded the statutory

maximum, which we defined as “the upper limit of punishment that Congress has

legislatively specified for the violation of a given statute.” Id. at 1194 (internal

quotation marks omitted). Finally, the waiver provision was not otherwise

unlawful, for it did not “seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Id. (quoting United States v. Olano, 507 U.S.

725, 732 (1993)).

      Here, the three-part inquiry regarding appellate waivers indicates that Mr.

Draine’s waiver should be enforced.

      First, the Booker arguments that Mr. Draine seeks to advance here fall

within the scope of the waiver: the waiver includes any challenges to Mr.

Draine’s sentence except those involving upward departures. Although the



                                           -7-
waiver provision is rescinded if the government appeals the sentence, the

government did not do so here.

      Although Mr. Draine argues that, in light of Blakely and Booker, the

district court’s four-point increase in the offense level under USSG § 2K2.1(b)(5)

was “tantamount” to an upward departure, we are not persuaded. Increases in the

offense level and departures are “two very different concepts.” United States v.

Waugh, 207 F.3d 1098, 1101 (8th Cir. 2000). 2 In sentencing Mr. Draine, the

district court did not depart upward. Rather, the court applied the Guidelines

provisions regarding offense level and criminal history and sentenced Mr. Draine

within the applicable Guidelines range. Mr. Draine’s Booker claim does not

challenge the manner in which the district court applied the Guidelines. Cf.

Green, 405 F.3d at 1189 (distinguishing between a Booker claim and a challenge

to the application of the Guidelines).

      Second, the record establishes that the waiver was knowing and voluntary.

The plea agreement is signed by Mr. Draine and his attorney. The agreement



      2
         To be sure, to the extent that they are based upon facts not found by the
jury, both increases in the offense level and upward departures may violate the
defendant’s Sixth Amendment rights under Booker. See United States v. Dazey,
403 F.3d 1147, 1174 (10th Cir. 2005) (concluding that an increase in the offense
level violated the defendant’s Sixth Amendment rights); United States v.
Cunningham, 405 F.3d 497, 504 (7th Cir. 2005) (noting that an upward departure
may violate the Sixth Amendment). However, the fact that Booker applies to both
of these kinds of sentencing decisions does not render them the same for purposes
of construing the scope of the waiver-of-appeal provision at issue here.

                                         -8-
states that Mr. Draine entered into it freely and voluntarily See Rec. doc. 54, at ¶

14. Mr. Draine does not argue otherwise.

      Finally, the waiver will not result in a miscarriage of justice. Mr. Draine

was sentenced within the statutory maximum and within the Guideline range. Cf.

Green, 405 F.3d at 1193-94 (noting that the defendant’s sentence was less than

the statutory maximum and was not otherwise unlawful and that the waiver of

appellate rights would not result in a miscarriage of justice). There is no

indication that the district court relied on impermissible factors at sentencing, and

Mr. Draine does not allege that he received ineffective assistance of counsel in

negotiating the plea agreement that contains the waiver.



                                III. CONCLUSION

      Accordingly, we enforce Mr. Draine’s waiver of his right to appeal, and

DISMISS this appeal. 3



                                 Entered for the Court,



                                 Robert H. Henry
                                 United States Circuit Judge


      3
         In light of this disposition, we deny as moot the government’s motion to
dismiss this appeal on another ground (the district court’s imposition of an
alternate sentence).

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