                                                                             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,

 v.                                                       No. 04-3390
                                                          (D. Kansas)
 MICHAEL A. WILSON, JR.,                         (D.Ct. No. 03-CR-20106-GTV)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, 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.

      Convicted pursuant to a guilty plea of possession of child pornography in

violation of 18 U.S.C. § 2252(a)(4)(B) (2002), Michael A. Wilson appeals his


      *
          This order and judgment is not binding precedent except under the doctrines of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.
sentence of sixty months imprisonment on the ground it violates United States v.

Booker, 125 S.Ct. 738 (2005) (invalidating the mandatory nature of the federal

sentencing guidelines on Sixth Amendment grounds). 1 In its brief, the

Government moves to enforce a waiver of the right to appeal included in Wilson’s

plea agreement. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), 2 we enforce the waiver and DISMISS.

       BACKGROUND

       Charged in a two count indictment with trafficking in child pornography in

violation of 18 U.S.C. § 2252(a)(1) (Count 1) and possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 2), Wilson entered

a plea of guilty to Count 2 on January 20, 2004. His plea agreement contained the

following waiver of the right to appeal:

       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
       manner in which it was determined in any collateral attack,

       1
        Wilson alleges both constitutional and non-constitutional Booker error. See
United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc).
       2
        See also United States v. Hahn, 359 F.3d 1315, 1324 (10th Cir. 2004) (“[T]his
Court has both statutory and constitutional subject matter jurisdiction over appeals when a
criminal defendant has waived his appellate rights in an enforceable plea agreement.”).

                                            -2-
      including, but not limited to, a motion brought under Title 28, U.S.C.
      § 2255 . . . . 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 sentencing 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).

(R. Vol. 1, Doc. 27 at 5-6.)

      On June 24, 2004, the Supreme Court decided Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531 (2004), in which it invalidated Washington’s sentencing

guidelines under the Sixth Amendment. Thereafter, the parties briefed the

applicability of Blakely to Wilson’s sentencing. The court concluded Blakely did

not apply to the federal sentencing guidelines and sentenced Wilson on September

20, 2004. This appeal followed.

      DISCUSSION

      In determining whether to enforce a waiver of the right to appeal, we apply

a three-prong analysis. We examine “(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 . . . .” Hahn, 359 F.3d at 1325. Wilson

contends the waiver of his right to appeal should not be enforced because its




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scope did not include a Booker claim, 3 it was unknowing, and to do so would

result in a miscarriage of justice.

       We strictly construe the scope of appellate waivers, and “any ambiguities in

these agreements will be read against the Government and in favor of a

defendant’s appellate rights.” Id. (internal quotation marks omitted). Wilson

contends an accused cannot waive his right to have all facts relative to sentencing

(under a mandatory guidelines scheme) determined by a jury beyond a reasonable

doubt. However, we have recently held to the contrary. See United States v.

Green, 405 F.3d 1180, 1189-90 (10th Cir. 2005). He next contends his waiver

was unknowing because it could not possibly have included the right to appeal on

the basis of the landmark holding of Booker, which, along with Blakely, post-

dated the execution of his waiver. 4 This argument, too, is foreclosed by our

holding in Green:

       3
         On January 12, 2005, the Supreme Court decided Booker, in which it extended its
ruling in Blakely to invalidate the mandatory nature of the federal sentencing guidelines
on Sixth Amendment grounds. 125 S.Ct. at 746. “We 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, 1175 n.1 (10th Cir. 2005).
       4
         Wilson also contends the court did not conduct an adequate Rule 11 inquiry when
he entered his plea of guilty. See FED. R. CRIM. P. 11(b)(1) (“Before the court accepts a
plea of guilty . . . the court must inform the defendant of, and determine that the
defendant understands . . . (N) the terms of any plea-agreement provision waiving the
right to appeal . . . .”). We construe this claim to be a sub-set of his claim that his waiver
of his right to appeal was unknowing. The claim is without merit. We have carefully
reviewed the record of the proceedings and conclude the district court fully complied with
the requirements of Rule 11.

                                             -4-
      To the extent that Defendant might argue that the Supreme Court's
      decisions in Blakely and Booker, both of which were issued
      subsequent to his original sentencing, somehow changed the way that
      courts conduct and review sentencings to such an extent that
      Defendant's waiver of his appellate rights was not knowing and
      voluntary, that argument is without merit. The Supreme Court has
      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 entered following that plea--remains voluntary and
      intelligent or knowing despite subsequent developments in the law.

Id. at 1190 (footnote omitted).

      Finally, Wilson maintains enforcement of his waiver of the right to appeal

would result in a miscarriage of justice, which we have defined as instances “[1]

where the district court relied on an impermissible factor such as race, [2] where

ineffective assistance of counsel in connection with the negotiation of the waiver

renders the waiver invalid, [3] where the sentence exceeds the statutory

maximum, or [4] where the waiver is otherwise unlawful.” Hahn, 359 F.3d at

1327 (internal quotation marks omitted). Wilson argues enforcement of his

appellate waiver would result in a miscarriage of justice because his sentence

exceeds the statutory maximum. Although recognizing that his sentence does not

exceed the five year maximum term of imprisonment provided by statute, see 18

U.S.C. § 2252(b)(2) (2002), Wilson argues 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 reflected in the jury verdict or admitted by

the defendant.” Blakely, 124 S.Ct. at 2537 (emphasis omitted); see also Booker,

                                         -5-
125 S.Ct. at 749 (same). Once again, we have decided otherwise. The “statutory

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

legislatively specified for the violation of a given statute.” Green, 405 F.3d at

1194 (internal quotation marks omitted). “That Blakely and Booker take a

different approach in defining statutory maximum does not undercut the

conclusion that the plain meaning of the phrase was intended in Hahn.” Id. at

1192 (internal quotation marks omitted).

      Wilson also contends his appellate waiver is “otherwise unlawful” because

his sentence was enhanced based on judicial fact-finding in violation of the

constitutional holding of Booker. Even if this is so, in order for Wilson to

prevail, the error must seriously affect the fairness, integrity or public reputation

of judicial proceedings. Hahn, 359 F.3d at 1327 (“[T]o satisfy the fourth . . .

factor--where the waiver is otherwise unlawful--the error must seriously affect the

fairness, integrity or public reputation of judicial proceedings, as that test was

employed in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123

L.Ed.2d 508 (1993).” (internal quotation marks omitted)). It is Wilson’s burden

to establish this standard is met. United States v. Maldonado, 410 F.3d 1231,

1233 (10th Cir. 2005). In deciding whether this standard is met,

      [t]he factors we consider include whether the plea agreement stated
      the appropriate statutory maximum, informed the defendant that he
      was giving up multiple constitutional and appellate rights in
      exchange for concessions from the government, and implied that the

                                          -6-
      sentence would be imposed in accordance with the guidelines then in
      effect. We also review whether the defendant's sentence conforms
      with the terms of the plea agreement and the defendant's
      understanding of the plea.

Id. at 1234.

      With the foregoing in mind, we have carefully reviewed the record of these

proceedings and find no discordance between Wilson’s sentence and the terms of

his plea agreement. We also note that apart from raising Blakely, Wilson offered

little challenge to the facts underpinning the PIR guideline calculations. [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.” Id. Furthermore, there is no indication in the record the court

would have imposed a more lenient sentence under a post-Booker discretionary

guideline scheme. 5 See id. at 1234-35. We therefore conclude Wilson has failed

to demonstrate that any constitutional Booker error in his sentencing seriously

affected the fairness, integrity or public reputation of judicial proceedings.

Consequently, his appellate waiver is not “otherwise unlawful” and its



      5
         Employing the November 1, 2002 edition of the United States Sentencing
Commission Guidelines Manual, the district court calculated a total offense level of 27
and a criminal history category of II, resulting in a guideline range of seventy-eight to
ninety-seven months imprisonment. Wilson requested a five level downward departure,
which would have placed him in a guideline range of forty-six to fifty-seven months. The
court denied the motion for downward departure and imposed the statutory maximum
penalty of sixty months imprisonment.

                                           -7-
enforcement would not result in a miscarriage of justice.

CONCLUSION

      Accordingly, we enforce Wilson’s waiver of his right to appeal and

DISMISS.

                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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