                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 30, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 10-5022
                                               (D.C. No. 4:09-CR-00021-GKF-1)
    CHARLES WILLIAM COOPER,                               (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.



         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Charles William Cooper’s plea agreement.

Mr. Cooper pleaded guilty to use of a minor to engage in sexually explicit

conduct for production of visual depiction, in violation of 18 U.S.C. § 2251(a),

and knowingly receiving child pornography, in violation of



*
      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 This order and judgment is not binding precedent, except under the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.
18 U.S.C. § 2252(a)(2). Pursuant to the plea agreement, Mr. Cooper waived his

right to appeal his conviction or his sentence, reserving only “the right to appeal

from a sentence which exceeds 327 months.” Mot. to Enforce, attached Plea

Agreement at 3. The district court sentenced him to 327 months’ imprisonment

for each conviction, to be served concurrently.

      Notwithstanding his appeal waiver, Mr. Cooper has filed a notice of appeal

seeking to challenge his sentence. The government has filed this motion to

enforce the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and

dismiss the appeal.

      In Hahn, we held that “in reviewing appeals brought after a defendant has

entered into an appeal waiver,” this court will determine “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights;

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

and (3) whether enforcing the waiver would result in a miscarriage of justice.”

Id. at 1325. A miscarriage of justice will result if (1) “the district court relied on

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

connection with the negotiation of the waiver renders the waiver invalid”;

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

unlawful.” Id. at 1327 (quotations omitted).




                                           -2-
      Mr. Cooper does not contend that his appeal is outside the scope of his

appeal waiver or that he did not knowingly and voluntarily waive his appellate

rights. He does, however, raise two miscarriage-of-justice challenges, one

directed at the “statutory maximum” prong and one directed at the “otherwise

unlawful” prong.

      Statutory Maximum. Mr. Cooper first argues that enforcement of his

appellate waiver would result in a miscarriage of justice because the district court

imposed a sentence in excess of the statutory maximum applicable to his

§ 2252(a)(2) conviction. Under 18 U.S.C. § 2252(b)(1), which sets the available

penalty for the § 2252(a)(2) conviction, the sentence varies depending on whether

the defendant has a specific type of prior federal or state conviction (generally

involving the sexual abuse of minors). If the defendant does not have a

qualifying prior conviction, the defendant shall be “imprisoned not less than

5 years and not more than 20 years,” but if the defendant does have a qualifying

prior conviction, he shall be “imprisoned for not less than 15 years nor more than

40 years.” Id. § 2252(b)(1). The district court ruled that Mr. Cooper’s prior state

conviction for lewd molestation met the prior-conviction criteria in § 2252(b)(1)

because it was a state conviction “relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or ward.” Id; Mot. to

Enforce, attached Tr. of Sentencing Hr’g at 31-35. As noted above, the court

sentenced Mr. Cooper to 327 months’ imprisonment on his § 2252(a)(2)

                                         -3-
conviction. Mr. Cooper argues that his prior state conviction does not meet the

§ 2252(b)(1) criteria, and therefore the 327-month sentence imposed by the court

exceeds the correct maximum statutory sentence of 20 years.

      Mr. Cooper’s sentence did not exceed the “statutory maximum” as that term

is used in Hahn with respect to a miscarriage-of-justice challenge to an appeal

waiver. We have held that the plain meaning of the term “‘statutory maximum’

in Hahn refers to the upper limit of punishment that Congress has legislatively

specified for the violation of a given statute.” United States v. Green, 405 F.3d

1180, 1192 (10th Cir. 2005). In reaching this conclusion, we rejected an

argument, similar to Mr. Cooper’s, that the “statutory maximum” for purposes of

the Hahn miscarriage-of-justice test is “‘the maximum sentence a judge may

impose solely on the basis of the facts . . . admitted by the defendant.’”

Id. at 1192 (quoting Blakely v. Washington, 542 U.S. 296, 303 (2004)). We held

that the term “statutory maximum” for purposes of Hahn does not have the same

meaning as that given by the Supreme Court in Blakely. Id. at 1192-94; see also

United States v. Maldonado, 410 F.3d 1231, 1234 (10th Cir. 2005) (per curiam)

(“[T]he mere fact that the defendant’s sentence is based on judge-made findings

does not seriously affect the fairness, integrity or public reputation of judicial

proceedings.”). Under the Hahn definition of statutory maximum, the upper limit

of punishment that Congress has legislatively specified for the violation of




                                          -4-
§ 2252(a)(2) is 40 years, and Mr. Cooper’s 327-month sentence does not exceed

that statutory maximum.

      The existence of a prior conviction used to increase a sentence is a

sentencing factor, not an element of the substantive offense, and thus can be

found by a judge based on the preponderance of the evidence and need not be

submitted to a jury or admitted by the defendant. See Almendarez-Torres v.

United States, 523 U.S. 224, 226-27 (1998). Mr. Cooper’s statutory-maximum

miscarriage-of-justice argument is essentially a claim of sentencing error; namely,

that the court erred in finding he had a qualifying prior conviction. This court has

repeatedly held, however, that alleged sentencing errors do not establish that

enforcement of the appeal waiver would be unlawful under the

miscarriage-of-justice inquiry. See United States v. Sandoval, 477 F.3d 1204,

1208 (10th Cir. 2007); see also United States v. Smith, 500 F.3d 1206, 1213

(10th Cir. 2007) (“To allow alleged errors in computing a defendant’s sentence to

render a waiver unlawful would nullify the waiver based on the very sort of claim

it was intended to waive.”).

      Mr. Cooper expressly waived his right to appeal any sentence up to

327 months – 87 months longer than the 20 years he now argues is the statutory

maximum. Mr. Cooper acknowledged in his Plea Agreement that if it was

determined that he had a qualifying prior conviction under § 2252(b)(1), than the

statutory maximum sentence for his § 2252(a)(2) conviction would be 40 years.

                                         -5-
Mot. to Enforce, attached Plea Agreement at 11-12. He again told the court

during the plea colloquy that he understood that the statutory maximum sentence

for his § 2252(a)(2) conviction would be 40 years if he had a qualifying prior

conviction under § 2252(b)(1). Id., attached Tr. of Change of Plea Hr’g. at 8.

Mr. Cooper clearly understood when he agreed to his appeal waiver that the

district court could impose a sentence in excess of 20 years; clearly understood

that he had a prior conviction that might qualify for the maximum 40-year

penalty; and clearly understood he was waiving his right to appeal a sentence in

excess of 20 years, so long as it did not exceed 327 months. The sentence he

received complied with the terms of the plea agreement. See Maldonado,

410 F.3d at 1234. In waiving his right to appeal any sentence that did not exceed

327 months, Mr. Cooper did not preserve any right to appeal the district court’s

determination that he had a qualifying prior conviction under § 2252(b)(1). In

short, under Hahn, Mr. Cooper’s sentence did not exceed the statutory maximum

and enforcing it would not constitute a miscarriage of justice.

      Sentence Enhancement. Mr. Cooper also argues that the district court’s

application of a four-level enhancement for sadistic conduct under U.S.S.G.

§ 2G2.2(b) resulted in a miscarriage of justice. He acknowledges that this

argument is foreclosed by our circuit precedent, which holds that in considering

whether an appeal waiver is “otherwise unlawful,” we look only “to whether the

waiver [itself] is otherwise unlawful” not to whether there was a sentencing error.

                                         -6-
Smith, 500 F.3d at 1213 (quotation omitted), and he explains that he raises this

issue only to preserve it for review by the Supreme Court.

      We conclude that enforcing the appeal waiver would not result in 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




                                         -7-
