                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 11 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-5061
                                                    (D.C. No. 99-CR-126-H)
    JERRY GREENHAW,                                       (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and        BRORBY , Senior
Circuit Judge.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
      Jerry Greenhaw was convicted, following the entry of a guilty plea, of

conspiracy to possess with intent to distribute a controlled substance and criminal

forfeiture, for which he was sentenced to 161 months incarceration. He contends

on appeal that the district court erred in assigning a criminal history category of

II, and that the government breached the plea agreement by failing to file a USSG

§ 5K1.1 motion for downward departure to a prison term of 96 months. The

government has filed a motion to dismiss, arguing that Mr. Greenhaw waived his

appellate rights in the plea agreement. We agree with the government, and,

accordingly, dismiss this appeal.

      The written plea agreement states:

             (b) Appellate Rights; Limitations

             As set forth below, you understand that the stipulated
             sentence in your case will be a term of imprisonment
             within the range of Offense Level THIRTY-THREE
             (33), as calculated according to the appropriate Criminal
             History Category. You further understand that
             18 U.S.C. § 3742 gives you the right to appeal the
             sentence imposed by the Court. Should the Court accept
             your guilty plea and impose a sentence within the
             stipulated Guideline range, you knowingly and
             voluntarily waive your right to appeal the sentence
             imposed and the manner in which the sentence is
             determined. This agreement does not effect the
             appellate rights of the United sates Attorney’s Office,
             as set forth in 18 U.S.C. § 3742(b).




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       This court will hold a defendant to the terms of a lawful plea agreement.

United States v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998).

“‘A defendant’s knowing and voluntary waiver of the statutory right to appeal his

sentence is generally enforceable.’”   Id. (quoting United States v. Hernandez ,

134 F.3d 1435, 1437 (10th Cir. 1998)). Such agreements waiving the right to

appeal are subject to certain exceptions, including whether the agreement was

involuntary or unknowing.     United States v. Cockerham , 237 F.3d 1179, 1182

(10th Cir. 2001), cert. denied , 122 S.Ct. 821 (2002). Mr. Greenhaw does not

contend that either the plea agreement or waiver of the statutory right to appeal

was unknowing or involuntary.      See Hernandez , 134 F.3d at 1337-38 (holding that

the defendant clearly waived his right to appeal where there was “no suggestion”

that the defendant did not knowingly and voluntarily enter into the plea agreement

and the waiver of the statutory right to appeal).

       Rather, Mr. Greenhaw argues that the government breached the agreement.

The waiver provision may be unenforceable if the government breaches the terms

of the plea agreement.   See United States v. Branam , 231 F.3d 931, 931 n.1

(5th Cir. 2000) (“We consider whether the Government breached the plea

agreement despite an appeal-waiver provision in the plea agreement.”);     United

States v. Wilkerson , 179 F.3d 1083, 1084, n. 2 (8th Cir. 1999) (waiver provision

does not bar an appeal if the government has breached the agreement)     ; United


                                          -3-
States v. Rosa , 123 F.3d 94, 98 (2d Cir. 1997) (“‘By opposing the acceptance of

responsibility adjustment, the government by its breach of the agreement released

[defendant] from his promise ... not to appeal.’” (quoting    United States v.

Gonzalez , 16 F.3d 985, 990 (9th Cir. 1993)).     See also Atterberry , 144 F.3d

at 1301, n.3 (indicating that government’s breach of agreement may render

waiver unenforceable).

       We agree with the government that it did not breach the plea agreement.

In determining whether the government breached a plea agreement, this court

examines the nature of the government’s promise, and evaluates the promise in

light of the defendant’s reasonable understanding of the promise at the time the

guilty plea is entered.   United States v. Peterson , 225 F.3d 1167, 1170-71

(10th Cir. 2000), cert. denied , 531 U.S. 1131 (2001). In assessing whether the

government has breached the agreement this court looks to the express terms of

the agreement.    Id.

       In the agreement, the parties stipulated that Mr. Greenhaw’s base offense

level was 38; that a two-level upward adjustment under USSG § 2D1.1(b)(1) was

applicable because Mr. Greenhaw had possessed a firearm; and that a two-level

downward departure under § 3E1.1(a) was warranted because he had accepted

responsibility. The government agreed to move for a 5-level downward departure




                                            -4-
under 5K1.1 if Mr. Greenhaw provided substantial assistance. Accordingly, the

parties then stipulated to an adjusted offense level of 33.

      The government also agreed to move for a further departure, up to 5 levels,

based on Mr. Greenhaw’s cooperation against individuals not named in the

indictment. The government subsequently moved for a two-level departure.

However, in spite of vigorous argument by the government’s counsel, the district

court only granted a one-level departure to 32.

      The government did not agree, as argued by the defendant, that it would

move for a departure to an offense level of 28 and a sentence of 96 months. The

government merely agreed that, should the court depart downward to an offense

level of 28, it would recommend a 96-month sentence. Since the court did not

depart to 28, the government was not obligated to recommend the 96-month

sentence.

      Mr. Greenhaw also argues that he did not waive his right to appeal the trial

court’s determination of his criminal history category. This argument is without

merit. The waiver provision, set forth above in its entirety, shows that the

defendant waived his right to appeal a term of imprisonment within the offense

level of 33 “as calculated according to the appropriate Criminal History

Category.” Moreover, the plea agreement states that there is no stipulation as to

the defendant’s Criminal History Category. In addition, the district court


                                          -5-
explained to Mr. Greenhaw at the change of plea hearing that he was giving up

any appellate rights if he is sentenced at an offense level of 33 or less.

Mr. Greenhaw indicated that he understood and had discussed it with his attorney.

      Accordingly, because Mr. Greenhaw has waived his right to appeal, this

appeal is DISMISSED .


                                                      Entered for the Court



                                                      Deanell Reece Tacha
                                                      Chief Judge




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