                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 16, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-3349
                                              (D.C. No. 5:08-CR-40010-RDR-1)
    ROBERT THOMAS JOHNSON,                                (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



         Robert Thomas Johnson pleaded guilty, pursuant to a plea agreement, to

possession with intent to distribute methamphetamine in violation of 21 U.S.C.

§ 841(a)(1). The district court sentenced him to thirty-eight months’

imprisonment. Mr. Johnson appealed, despite the fact that his plea agreement

contained an appeal waiver. The government has moved to enforce that waiver



*
      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 This order and judgment is not binding precedent, except under the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.
pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per

curiam). We grant the motion and dismiss the appeal.

      Hahn provides for enforcement of an appeal waiver when (1) the appeal is

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

not result in a miscarriage of justice. Id. at 1325. Mr. Johnson argues that he did

not knowingly and voluntarily enter into the plea agreement because the

government failed to timely disclose impeachment evidence as required by Brady

v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972). In particular, he contends that the government withheld information

regarding the credibility and qualifications of an arresting officer and that this

withholding of information prevented him from knowingly and voluntarily

making a plea. 1

      In considering whether Mr. Johnson knowingly and voluntarily waived his

appellate rights, Hahn instructs that we look primarily at the language of the plea

agreement and at the adequacy of the Federal Rule of Criminal Procedure 11

colloquy. See Hahn, 359 F.3d at 1325. Mr. Johnson bears the burden of showing

that his plea was not knowing and voluntary. Id. at 1329.




1
      We need not address the factors that Mr. Johnson does not contest. See
United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).

                                          -2-
       The language of the plea agreement demonstrates that the waiver of

appellate rights was knowing and voluntary. The plea agreement stated that

Mr. Johnson “knowingly and voluntarily waive[d] any right to appeal . . . any

matter in connection with this prosecution, [his] conviction, or the components of

the sentence to be imposed.” Plea Agreement at 9. Additionally, he

“acknowledge[d] that he ha[d] read the plea agreement, underst[oo]d it and

agree[d] it [was] true and accurate and not the result of any threats, duress or

coercion.” Id. at 12. Finally, he “acknowledge[d] that [he was] entering into this

agreement and [was] pleading guilty because [he] is guilty and [was] doing so

freely and voluntarily.” Id.

       Likewise, the Rule 11 plea colloquy, held after Mr. Johnson signed the plea

agreement, supports a conclusion that the waiver was knowing and voluntary.

During the colloquy, Mr. Johnson stated that the plea agreement represented his

understanding of the agreement he had with the government. He affirmed that he

understood his right to plead not guilty and that if he pleaded not guilty, he would

have the right to a jury trial and all of the rights a jury trial entailed, including a

right to cross examine witnesses. And he agreed that his plea was made freely

and voluntarily based on his guilt and that he fully understood the consequences

of the plea.

       Despite these representations of a knowing and voluntary plea in the plea

agreement and at the plea colloquy, Mr. Johnson asserts that his plea was not

                                            -3-
knowing and voluntary because he did not know that he was giving up a claim

that the government failed to disclose impeachment evidence. The Supreme

Court, however, foreclosed this exact argument in United States v. Ruiz, 536 U.S.

622, 625, 629, 633 (2002), by holding that the government has no constitutional

obligation to disclose impeachment information before a defendant enters into a

plea agreement. Ruiz emphasized that “impeachment information is special in

relation to the fairness of a trial, not in respect to whether a plea is voluntary.”

Id. at 629. Rather, “a waiver [is] knowing, intelligent, and sufficiently aware if

the defendant fully understands the nature of the right and how it would likely

apply in general in the circumstances–even though the defendant may not know

the specific detailed consequences of invoking it.” Id. Mr. Johnson understood

that he was giving up his right to cross examine government witnesses. He

therefore generally knew what he was giving up, and his appeal waiver was not

unknowing or involuntary. See Hahn, 359 F.3d at 1326-27.

      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver and DISMISS this appeal. Mr. Johnson’s motion to file a pro se response

to the motion to enforce is GRANTED.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




                                           -4-
