                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 10, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                            Nos. 10-3028 & 10-3029
                                              (D.C. No. 5:07-CR-40013-RDR-1)
    OSCAR D. RANGEL,                                      (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, MURPHY, and HARTZ, Circuit Judges.



         Defendant Oscar D. Rangel pleaded guilty to distribution of cocaine base in

violation of 21 U.S.C. § 841(a). Under the terms of his plea agreement, defendant

waived his right “to appeal or collaterally attack any matter in connection with

[his] prosecution, conviction and sentence.” Mot. to Enforce, Attach. at 15. The

district court determined the applicable sentencing range to be 168 to 210 months



*
      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 This order and judgment is not binding precedent, except under the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.
and sentenced defendant to 168 months’ imprisonment, at the low end of the

advisory guideline range and well below the statutory maximum sentence of forty

years’ imprisonment. Despite waiving his appellate rights, defendant has now

filed an appeal, prompting the government to seek to enforce the appeal waiver

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

(per curiam).

      Under Hahn, we have adopted a three-prong analysis for determining

whether an appellate waiver is enforceable, in which we examine whether:

(1) the disputed appeal falls within the scope of the waiver of appellate rights;

(2) the defendant knowingly and voluntarily waived his appellate rights; and

(3) enforcing the waiver would result in a miscarriage of justice. 359 F.3d

at 1325. Under the third Hahn prong, a miscarriage of justice occurs in situations

where: (1) the district court relied on an impermissible factor such as race;

(2) ineffective assistance of counsel resulted in connection with the negotiation of

the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver is

otherwise unlawful. 359 F.3d at 1327. As to the fourth situation, concerning a

waiver being “otherwise unlawful,” we do not look to “whether another aspect of

the proceeding may have involved legal error” but look only “to whether the

waiver [itself] is otherwise unlawful.” United States v. Shockey, 538 F.3d 1355,

1357 (10th Cir. 2008) (emphasis in original, quotation omitted). This list is




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exclusive and an appellate waiver will not result in a miscarriage of justice unless

one of these four situations occurs. Id.

         Defendant seeks to appeal his sentence as too long. In response to the

government’s motion to enforce his appeal waiver, he contends that the district

court improperly calculated his base offense level by including in the calculation

a quantity of narcotics it determined to be a “counterfeit” substance under United

States Sentence Guideline § 2D1.1 (application note 2). Based on this claim of

sentencing error, defendant contends that (1) enforcing the appeal waiver would

be a miscarriage of justice, and (2) the government breached its agreement to

recommend the “applicable” guideline range when it remained silent when he

objected to the inclusion of the counterfeit substances to enhance the offense

level.

         Defendant specifically stated in his plea agreement that he “knowingly”

waived the right to appeal “any matter” in connection with his sentence, and more

specifically, his right to appeal “a sentence imposed which is within the guideline

range determined appropriate by the court” unless the court departed upward from

the advisory guideline range determined to be applicable by the court. Mot. to

Enforce, Attach. at 15. The district court did not depart upward from the advisory

Guidelines. Defendant’s appeal is a direct challenge to the district court’s

sentencing determination. Thus, defendant’s appeal falls squarely within the

plain meaning of his appeal waiver.

                                           -3-
      Defendant contends the waiver is “otherwise unlawful” under the

miscarriage of justice prong because the district court erred in enhancing his

offense level based on counterfeit substances. Defendant’s miscarriage-of-justice

argument is simply a claim of sentencing error, and this court has repeatedly held

that alleged sentencing errors do not establish that enforcement of the appeal

waiver would be unlawful under the miscarriage-of-justice inquiry. United States

v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007) (“Our inquiry is not whether

the sentence is unlawful, but whether the waiver itself is unlawful. . . .”). Thus,

it would not be a miscarriage of justice to enforce the appeal waiver.

      Contrary to defendant’s argument, we find no breach of the government’s

plea agreements. The government agreed in part to “recommend a sentence at the

low end of the applicable guideline range,” though its agreements were contingent

on “the defendant’s continuing manifestation of acceptance of responsibility.”

Mot. to Enforce, Attach. at 12. Defendant did not continue to manifest an

acceptance of responsibility, but rather absconded from bond supervision, failed

to appear at a scheduled hearing, and continued to use drugs in violation of his

conditions of release. Id. at 47-49. Nonetheless, the government did not object to

the imposition of a sentence at the low end of the applicable guideline range. The

plea agreement lacks any promise by the government to join in any sentencing

objections by defendant. We conclude the government acted in accordance with,

and did not breach the terms of, the plea agreement.

                                          -4-
      Defendant further contends that the district court did not explain the terms

of his waiver to him during his plea colloquy and thus, his waiver was not

knowing and voluntary and enforcing it would be a miscarriage of justice.

Defendant bears the burden of showing that his plea was not knowing and

voluntary. See Hahn, 359 F.3d at 1329. During the plea colloquy, the district

court clearly explained to defendant that he was waiving his right to appeal his

sentence:

      COURT: All right. You understand that under some circumstances
      you would have had the right to appeal any sentence that I might
      impose; but in your plea agreement, it’s very clear that you have
      waived your right to appeal the sentence. Do you understand that?

      DEFENDANT: That’s correct.

      COURT: All right. Now, you understand that – of course, that by
      entering a plea agreement and entering a plea of guilty, you will have
      waived or given up your right to appeal all or any part of your
      sentence. Is that clear to you?

      DEFENDANT: (Nods head up and down).

Mot. to Enforce, Attach. at 29.

      During the colloquy, defendant stated that he had an opportunity to read

and discuss the plea agreement with his attorney, and that the plea agreement

accurately represented every understanding he had with the government. Id. at

24. As noted, defendant stated in the plea agreement that he was “knowingly and

voluntarily” waiving “any right to appeal or collaterally attack any matter in

connection with [his] prosecution, conviction and sentence.” Id. at 15 (emphasis

                                         -5-
added). He agreed in the plea agreement that the sentence would be determined

solely by the district court, id. at 13, that the court could consider any relevant

evidence in determining the sentence and any relevant conduct in calculating the

offense level, id. at 11. Defendant did not object at the plea colloquy to any

failure by the district court to adequately explain the appeal waiver, nor does he

now articulate in his response to the motion to enforce how or why he believes

the district court’s explanation of his appeal waiver at the colloquy was defective.

      We do note that at the plea colloquy, the district court explained that

defendant was waiving his right to appeal his sentence, but did not expressly

explain that defendant was also waiving his right to appeal or collaterally attack

any matter in connection with his conviction, or that defendant could appeal a

sentence imposed above the applicable guideline range determined by the court.

All of these details of the appeal waiver were set forth in the plea agreement

itself, however. In the plea agreement, defendant stated his acknowledgment that

he had sufficient time to discuss the agreement with his attorney. Even assuming

that the court erred by not discussing these aspects of the waiver, such omission

would not constitute plain error, see United States v. Edgar, 348 F.3d 867, 871

(10th Cir. 2003) (noting that the standard of review is plain error), because it did

not affect defendant’s substantial rights. “In the context of a plea agreement, an

error is prejudicial if the defendant has shown that he would not have pleaded

guilty if the district court had complied with [Fed. R. Crim. P.] 11(b)(1)(N).”

                                          -6-
Edgar, 348 F.3d at 872. Defendant only seeks to appeal his sentence, but the

district court clearly explained at the plea colloquy this right was waived. There

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

if the district court had further explained the appellate waiver during the plea

colloquy.

      We conclude that defendant’s appeal is within the scope of the appeal

waiver, that defendant has not met his burden to show that his appeal waiver was

not knowingly and voluntarily entered, and that enforcing the waiver would not

be a miscarriage of justice. 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




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