                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        August 3, 2005
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 04-3383
 v.                                            (D.C. No. 03-CR-40143-JAR)
 MARCO ANTONIO VERDUZCO-                                (D. Kansas)
 MORETT,
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.



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

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

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Defendant was indicted for re-entry into the United States after being

deported for an aggravated felony, in violation of 8 U.S.C. § 1326(a)(2). On June

22, 2004, Defendant pled guilty to the charge. In his plea agreement, Defendant


      *
       This order and judgment is not binding precedent, except under the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.
waived his appellate rights. After reviewing the presentence report and applying

the Sentencing Guidelines, the district court sentenced Defendant to 46 months’

imprisonment. Defendant now appeals to this court.

      On appeal, Defendant contends that the district court’s mandatory

application of the Sentencing Guidelines violated his constitutional rights under

United States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Before we address the

merits of Defendant’s appeal, however, it is necessary to address an argument

made by the government in its brief, namely that Defendant waived his right to

appeal his sentence. Paragraph 9 of the plea agreement states:

      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. . . . 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
      otherwise attempt to modify or change his sentence or manner in
      which it was determined in any collateral attack, including, but not
      limited to, a motion brought under Title 28, U.S.C. § 2255 [except as
      limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th
      Cir. 2001)] and a motion brought under Title 18, U.S.C. §
      3582(c)(2). 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.

Rec., Supp. Vol. 1, at 12-13 (Petition to Enter Plea of Guilty and Order Entering




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Plea). 2 In its brief, the government argues that Defendant’s appeal rights, at least

as to the issues raised in this appeal, were waived.

      Our general rule favors enforcing “plea agreements and their concomitant

waivers of appellate rights,” United States v. Hahn, 359 F.3d 1315, 1318 (10th

Cir. 2004) (en banc). In deciding whether to enforce the waiver, we must

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.

      The language of Defendant’s waiver is quite broad: “Defendant knowingly

and voluntarily waives any right to appeal or collaterally attack any matter in

connection with this prosecution, conviction and sentence,” Rec., Supp. Vol. I, at

12 (Petition to Enter Plea of Guilty and Order Entering Plea) (emphasis added).

This all-encompassing language demonstrates Defendant’s intent to waive all

potentially appealable issues. Because he did not expressly reserve an exception

for the instant challenge, Defendant’s Booker argument is within the scope of his

waiver.

      Defendant has not argued that his waiver was not knowingly and



      Two supplemental record submissions were filed with the court labeled
      2

Supplemental Volume One. The supplemental record cited in this Order and
Judgment refers to the March 27, 2005, submission.

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voluntarily given; therefore, we need not address this issue and presume it

admitted. See United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004)

(determining that appellant effectively admitted to knowingly and voluntarily

waiving his appellate rights because he did not contest the issue).

      Finally, the facts of this case do not demonstrate that enforcement of the

waiver will result in a miscarriage of justice. We have outlined the following

four situations where we will not enforce a waiver because doing so would result

in a miscarriage of justice: “‘[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.’” 3 Hahn, 359 F.3d at 1327 (quoting United States v. Elliott,

264 F.3d 1171, 1173 (10th Cir. 2001)). The record does not support an argument

sufficient to demonstrate a miscarriage of justice.




      3
        In outlining what is sufficient to establish the fourth exception to the
waiver rule, we held that “‘the error [must] seriously affect[] the fairness,
integrity or public reputation of [the] judicial proceedings.’” Hahn, 359 F.3d at
1327 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

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      Accordingly, we enforce Defendant’s waiver of his appellate rights found

in his plea agreement and DISMISS this appeal.




                                             Entered for the Court

                                             Monroe G. McKay
                                             Circuit Judge




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