                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                                  December 12, 2005
                       FOR THE TENTH CIRCUIT
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                  No. 04-3402
 v.                                       (D.C. No. 04-CR-10044-WEB)
                                                    (D. Kan.)
 MARTIN EDWARD COLE,

             Defendant-Appellant.


                        ORDER AND JUDGMENT           *




Before LUCERO, McCONNELL           and TYMKOVICH,        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 Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

      The defendant entered a guilty plea to conspiracy to being a felon in

possession of a firearm. The plea agreement contains a waiver of appellate


      *
       This order and judgment is not binding precedent, except under the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.
rights, limited by the defendant’s reservation of the right to appeal the

denial of his motion to suppress and the imposition of a four-level sentence

enhancement for possession of a firearm during the commission of another

felony. The plea agreement states:

            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 and sentence.
            However, the defendant may appeal the denial of the
            defendant’s Motion to Suppress heard May 21,
            2004, and if the defendant receives a four level
            enhancement pursuant to U.S.S.G. § 2K2.1(b)(5), he
            may appeal the four level enhancement.

            The defendant is aware that Title 18, U.S.C. § 3742
            affords a defendant the right to appeal the 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 with the
            exceptions listed above. The defendant also waives
            any right to challenge a sentence or manner in which
            it was determined in any collateral attack,
            including, but not limited to, a motion brought
            under Title              28,
                                     U.S.
                                     C. §
                                     2255.
                                     Howe
                                     ver,
                                     if the
                                     Unite
                                     d
                                     State
                                     s
                                     exerc

                                       2
ises
its
right
to
appea
l the
sente
nce
impo
sed
as
autho
rized
by
Title
18,
U.S.
C. §
3742(
b),
the
defen
dant
is
relea
sed
from
this
waiv
er
and
may
appea
l the
sente
nce
recei
ved
as
autho

  3
                                    rized
                                    by
                                    Title
                                    18,
                                    U.S.
                                    C. §
                                    3742(
                                    a).


Plea Agreement, at p. 4 (emphasis added).

      The defendant argued in the district court that the imposition of the

four-level enhancement recommended in the presentence report would

violate Blakely v. Washington, 542 U.S. 296 (2004). He also moved to

withdraw his plea, arguing that he did not voluntarily agree to the facts set

out in the plea agreement which form the basis for the enhancement. The

district court denied the motion to withdraw the plea, concluding, after an

extensive colloquy with the defendant, that the defendant voluntarily

admitted the underlying facts. The court also rejected the contention that

the enhancement would violate Blakely, again because the defendant had

voluntarily admitted the underlying facts.

      The resulting guideline range was 84 to 105 months, and the court

imposed a sentence at the low end, 84 months.

      In this appeal, the defendant challenges the four-level enhancement




                                       4
under United States v. Booker, 125 S.Ct. 738 (2005). 1 1 (He does not

challenge the denial of his motion to suppress.) He contends, that without

Booker, his argument regarding the imposition of the enhancement could

not be considered by the district court because of the mandatory nature of

the guidelines.

      The government filed a motion to enforce the plea agreement after the

defendant filed his opening brief. The government argues that the appeal is

within the scope of the waiver. After receiving the defendant’s response,

we referred the government’s motion to the merits panel and ordered

briefing on the merits. We now hold, after reviewing the motion, the

response and the parties’ merits briefs, that the waiver is not enforceable as

to the appeal of the four-level enhancement.

      The defendant argues, among other things, that the preservation of his

right to appeal the four-level enhancement is broad enough to include his

Booker claim. The government, in turn, contends that the appeal of the

enhancement is within the scope of the waiver because, under United States

v. Green, 405 F.3d 1180 (10th Cir. 2005), a Booker issue is not preserved



      1
       This court “must apply the holdings in Blakely and Booker to all
cases in which a defendant properly raised an issue under either case.”
United States v. Clifton, 406 F.3d 1173 n.1 (10th Cir. 2005).


                                      5
by preserving appeal of a sentencing enhancement as an exception to a

broadly worded appellate waiver. We agree with the defendant.

      Unlike Green, here the defendant’s Booker argument, that the district

court improperly applied the guidelines in a mandatory fashion, is

intertwined with the reserved issue - the imposition of the four-level

enhancement.

      Moreover, this court strictly construes appeal waivers, and any

ambiguities will be read against the government and in favor of a

defendant’s appellate rights. United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004).

      Accordingly, the defendant’s appeal of the imposition of the four-

level enhancement is beyond the scope of the waiver. 2

      As to the merits of the appeal, this court reviews the district court’s

non-constitutional Booker error for harmless error. See United States v.

Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). The defendant

is entitled to a remand for resentencing since the district court sentenced

the defendant to the lowest possible sentence under what it considered to be



      2
       In the district court the defendant also challenged the addition of
two criminal history points for being on probation at the time of the instant
offense. To the extent the defendant may be appealing the computation of
his criminal history score, that issue is precluded by the appellate waiver.

                                       6
mandatory guidelines. Id. at 1143 (holding that a sentence at the bottom of

the guidelines range demonstrates that the error is not harmless and

warrants a remand for resentencing). The government admits that if this

court concludes that the waiver should not be enforced that remand for

resentencing is appropriate.

      Accordingly, the government’s motion to enforce the plea agreement

is denied as to the appeal of the imposition of the four-level enhancement

and granted as to the calculation of the defendant’s criminal history, and

the matter is REMANDED for resentencing. The defendant’s request that

the district court be ordered to attach a copy of its determinations to the




presentence report is denied as moot. The mandate shall issue forthwith.



                                            Entered for the Court



                                            Per Curiam




                                        7
