                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                    PUBLISH
                                                                         MAY 18 1998
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                              Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                     No. 97-3149

 JAMES V. ATTERBERRY,

       Defendant - Appellant.


                 Appeal from the United States District Court
                          for the District of Kansas
                      (D.C. No. 96-CR-20059-05-GTV)


Submitted on the briefs:

Theodore J. Lickteig, Overland Park, Kansas, for Defendant - Appellant.

Jackie N. Williams, United States Attorney, and Charles E. Ambrose, Jr., Special
Assistant United States Attorney, Kansas City, Missouri, for Plaintiff - Appellee.



Before SEYMOUR, BRORBY and BRISCOE, Circuit Judges.


BRORBY, Circuit Judge.
      Mr. James Atterberry appeals his sentence, entered pursuant to a guilty

plea, contending the district court erred in overruling his objections to the

recommended sentence in his Presentence Investigation Report. We dismiss. 1



      Mr. Atterberry pleaded guilty to one count (in a sixteen-count indictment)

of conspiring to distribute cocaine and marijuana, in violation of 21 U.S.C.

§§ 841(a), 841(b)(1)(A)(ii), 841(b)(1)(B)(vii), and 846. In return for his

cooperation, the government moved for a downward sentencing departure

pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. At the sentencing

hearing, the court adopted the Presentence Investigation Report’s suggested base

offense level of 21 over two objections by Mr. Atterberry. 2 However, the court

granted the government’s motion for a downward departure and lowered Mr.

Atterberry’s offense level from 21 to 19. The court then sentenced him to a

thirty-month term of imprisonment, which was the minimum sentence for that

offense level, given his criminal history category. This sentence was well below



      1
       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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
      2
         Mr. Atterberry argued his base offense level should have been reduced
because he distributed marijuana, not cocaine, and because he played only a minor
role in the conspiracy.


                                          -2-
the statutory minimum.



      Mr. Atterberry appeals the district court’s rulings on his objections to the

sentence. The government moved to dismiss the appeal based on a waiver

contained in the plea agreement that limited the parties’ rights to appeal.



      The written plea agreement contains the following waiver:

      The defendant is aware that [18 U.S.C. § 3742] gives the defendant a
      right to appeal the sentence to be imposed and that other federal
      statutes give the defendant the right to appeal other aspects of his
      conviction. In exchange for the concessions made by the government
      in this Agreement, the defendant voluntarily and knowingly waives
      the following rights:

             a. his right to appeal any sentence that does not exceed
             the maximum penalty provided by the statute of
             conviction on any ground, including any appeal right
             conferred by 18 U.S.C. § 3742 ....


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

See United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998). “A

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

sentence is generally enforceable.” Id. Because we do not have a copy of the

transcript of the Rule 11 hearing in the record, we cannot verify that the district

court engaged Mr. Atterberry in a proper colloquy regarding the waiver of his

appellate rights, but we see nothing in the record suggesting the waiver was not

                                          -3-
made knowingly and voluntarily. See id. (enforcing plea agreement waiver of

right to appeal against defendant even though record lacked transcript of plea

agreement hearing). In addition, Mr. Atterberry himself does not contend his

agreement to the appeal waiver was unknowing or involuntary. Therefore,

because Mr. Atterberry’s thirty-month sentence did not exceed the maximum

statutory penalty, the waiver applies. To avoid dismissal of his appeal, Mr.

Atterberry must show why this court should not enforce the waiver.



      Mr. Atterberry argues the district court negated the waiver provision

through a statement it made during the sentencing hearing. At the conclusion of

the hearing, no doubt while running through a routine checklist, the court said,

“[b]oth the Government and the defendant are advised of their respective rights to

appeal this sentence subject to the provisions of [18 U.S.C. § 3742].” Mr.

Atterberry contends this statement controls over the written waiver, especially in

light of the government’s failure to object. 3


      3
          It is unfortunate the government did not object, in order to provide the
district court an opportunity to clarify its statement. However, the court can think
of no reason why the failure to object would constitute a breach of the agreement
or should make the waiver provision unenforceable. See United States v.
Michelsen, No. 97-3114, ___ F.3d ___, ___, 1998 WL 166829, *5 n.4 (8th Cir.
Apr. 13, 1998) (finding failure to object does not negate waiver); United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992) (finding failure to object was not a
breach).


                                          -4-
      In support of his argument, Mr. Atterberry directs this court’s attention to a

Ninth Circuit case, United States v. Buchanan, 59 F.3d 914 (9th Cir.), cert.

denied, 516 U.S. 970 (1995), in which that circuit held oral pronouncements of a

district court advising a defendant of his right to appeal control over written

waivers of that right, id. at 917-18. We do not find that decision persuasive.



      In Buchanan, the district court twice mentioned the defendant’s right to

appeal. The first time, at a preliminary sentencing hearing, the court, in passing,

referred to the defendant’s right to challenge his sentence while discussing

another issue. But the second time, at the final sentencing hearing, the court

explicitly advised the defendant of his right to appeal and asked the defendant if

he understood that right, to which the defendant replied “[y]es, sir.” Id. at 917.

Believing “[l]itigants need to be able to trust the oral pronouncements of district

court judges,” the Ninth Circuit ruled the oral pronouncement controlled over the

written waiver. Id. at 918.



      This case lacks a similar explicit contradiction by the district court of the

written waiver. Here, the district court merely noted the parties respective rights

to appeal pursuant to 18 U.S.C. § 3742. The court mentioned the right to appeal

only once, and when it did so, it was not only addressing the defendant. Most


                                          -5-
importantly, the court did not query the defendant as to whether he understood its

description of his appeal rights. This distinction alone convinces us this case is

distinguishable from Buchanan.



      Also, it appears the court’s statement may even be consistent with the

written waiver. Under the waiver, Mr. Atterberry could appeal pursuant to 18

U.S.C. § 3742 if he believed his sentence exceeded the statutory maximum

permitted for his offense. The district court’s comment may only have been

intended to inform Mr. Atterberry of his right to appeal as limited by the waiver,

as the court was required to do. See Fed. R. Crim. P. 32(c)(5).



      Furthermore, even if this case was comparable to Buchanan, we would not

reach the same result. The Ninth Circuit reached its decision out of concern that

defendants be able to trust and rely upon the district court’s statements.

Buchanan, 59 F.3d at 917-18. We are more persuaded by the circuits that have

held statements made by a judge during sentencing concerning the right to appeal

do not act to negate written waivers of that right, because statements like those

made by the court during Mr. Atterberry’s sentencing do not affect a defendant’s

prior decision to plead guilty and waive appellate rights. See Michelsen, ___ F.3d

at ___, 1998 WL 166829, *5; Melancon, 972 F.2d at 568 (considering whether


                                         -6-
oral statement acts to negate knowingness of waiver). Because the district court’s

routine remarks could not have affected Mr. Atterberry’s waiver decision, we

believe they should not negate that decision.



      Under the terms of the agreement signed by Mr. Atterberry and his

attorney, Mr. Atterberry waived his right to raise this appeal. Therefore, the

appeal is DISMISSED.




                                         -7-
