                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                             July 12, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-6038
                                                    (D.C. No. 5:17-CR-00295-F-5)
 LOZARO LEON BETANCOURT,                                    (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver in Lozaro Leon Betancourt’s plea agreement. Exercising jurisdiction

under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

                                   BACKGROUND

      Betancourt pleaded guilty to conspiracy to commit access device fraud in

violation of 18 U.S.C. § 1029(b)(2). The written plea agreement provided a detailed

advisement about the possible sentences. As pertinent here, it explained that the

maximum statutory sentence was five years and that Betancourt had agreed that for


      *
         This order and judgment is not binding precedent, except under the doctrines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.
purposes of calculating the applicable guidelines range, the total of actual and

intended losses was between $250,000 and $550,000. The plea agreement also

explained that Betancourt had agreed to waive his “right to appeal his sentence,”

including “the manner in which the sentence is determined,” and provided that the

only exception to the appeal waiver was that he retained his right to appeal the

substantive reasonableness of an above-guidelines sentence. Mot. to Enforce,

Attach. 1 at 8. By signing the written plea agreement, Betancourt acknowledged that

he was entering his plea knowingly and voluntarily and that he understood its

consequences, including the stipulated loss range, possible sentences, and appeal

waiver.

      At the change of plea hearing, Betancourt assured the court that he had read

and discussed the plea agreement with counsel before signing it and that he

understood its terms. The court reminded him of the possible sentences and the

court’s discretion to determine both the applicable guidelines range and the ultimate

sentence imposed. The court also reminded Betancourt about the broad scope of the

appeal waiver and confirmed that he understood that he was waiving his right to

appeal “even though [he did] not yet know what [his] sentence . . . will be.” Id.,

Attach. 2 at 11. At every step of the advisement, Betancourt indicated that he

understood, and he did not ask questions or seek clarification when given the

opportunity to do so. Based on Betancourt’s responses to the court’s questions and

its observations of his demeanor during the change of plea hearing, the court

accepted his plea as having been voluntarily, knowingly, and intelligently entered.

                                           2
      At the subsequent sentencing hearing, the court and counsel had an extensive

colloquy about Betancourt’s objections to the loss amount. Specifically, he argued

that his sentence should be based on the actual loss amount, which represented the

loss to financial institutions and individuals whose credit cards were compromised,

instead of on the intended loss amount, which included the value of numerous

counterfeit credit cards, gifts cards, and other instruments he possessed in furtherance

of the fraud scheme. He maintained that the court should give little weight to the

intended loss amount both because it was overstated and because it included the

value of gift cards despite the lack of circuit precedent holding that gift cards are

access devices for purposes of the access device fraud statute. But the court

ultimately overruled those objections, noting that the parties had stipulated to a total

loss amount of $259,870.03. Based in part on that loss amount, the court adopted a

guidelines range of 30 to 37 months and, after considering the parties’ arguments for

upward and downward variations, sentenced Betancourt to 37 months in prison—the

maximum sentence in the applicable guidelines range.

      Despite the fact that his sentence does not fall within the only exception that

would permit an appeal (an above-guidelines sentence), Betancourt filed an appeal

claiming the sentence is substantively unreasonable and excessive in light of his lack

of criminal history and the court’s use of “an artificially inflated” intended loss

amount. Aplt. Docketing Statement at 4.




                                            3
                                     DISCUSSION

      In ruling on a motion to enforce, we consider: “(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.” United States v. Hahn, 359 F.3d

1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Betancourt concedes that he

knowingly and voluntarily waived his right to appeal and that his appeal falls within

the scope of the waiver. He maintains, however, that enforcing the appeal waiver

would result in a miscarriage of justice. We disagree.

      A miscarriage of justice occurs where (1) “the district court relied on an

impermissible factor such as race”; (2) “ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid”; (3) “the

sentence exceeds the statutory maximum”; or (4) “the waiver is otherwise unlawful.”

Hahn, 359 F.3d at 1327 (internal quotation marks and citations omitted). To show

that an appeal waiver is “otherwise unlawful,” the defendant must prove that the

alleged error “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1329. “The burden rests with the defendant to

demonstrate that the appeal waiver results in a miscarriage of justice.” United States

v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).

      Here, Betancourt claims his appeal waiver is “otherwise unlawful” and that

“[j]ustice and notions of fundamental fairness” require that he be permitted to appeal

the substantive reasonableness of his sentence because the court’s use of the intended

                                            4
loss amount resulted in an excessive sentence that does not fulfill the purposes of

punishment set forth in 18 U.S.C. § 3553(a). Resp. to Mot. to Enforce at 6. But his

argument challenges the propriety of the sentence, not the legality of his appeal

waiver. Because the “otherwise unlawful” exception is focused on the fairness of the

proceedings, not the result of the proceedings, a defendant may not rely on it to avoid

enforcement of an appeal waiver based on alleged errors in the calculation of his

sentence. United States v. Smith, 500 F.3d 1206, 1212-13 (10th Cir. 2007).

                                   CONCLUSION

      Accordingly, we grant the government’s motion to enforce the appeal waiver

and dismiss the appeal.


                                           Entered for the Court
                                           Per Curiam




                                           5
