                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        May 27, 2010
                                  TENTH CIRCUIT
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,
                                                            No. 09-6211
 v.                                               (D.C. No. 5:07-CR-00163-HE-1)
                                                           (W.D. Okla.)
 ROY JOE BEN THURSTON, II,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


      Roy Joe Ben Thurston, II, appeals his sentence on the ground that the district court

erred in applying a two-level upward adjustment to his criminal offense level under

United States Sentencing Guidelines (“USSG”) § 2D1.1(b)(1). Because Thurston

knowingly and voluntarily waived his appellate rights, we dismiss his appeal.



      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. 32.1.
                                               I

       In 2007, Thurston pled guilty to two counts of possession of a controlled substance

with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and one count of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The plea

agreement contained an express waiver of Thurston’s right to “[a]ppeal . . . his sentence

as imposed by the Court . . . provided the sentence is within or below the advisory

guideline range determined by the Court to apply to this case.” In calculating a total

offense level of twenty-five,1 the district court applied a two-level enhancement for

possession of a firearm in connection with drug activity pursuant to USSG

§ 2D1.1(b)(1).2 Based on this offense level and a criminal history category of III, the

court calculated a suggested guidelines range of seventy to eighty-seven months and

sentenced Thurston to eight-four months’ imprisonment.3

       Approximately one year after sentencing, Thurston filed a 28 U.S.C. § 2255


       1
           The court applied the 2007 version of the sentencing guidelines.
       2
         The presentence investigative report (“PSR”) initially suggested a total offense
level of twenty-seven. At sentencing, however, the district court upheld Thurston’s
objection to the court’s considering approximately fifteen grams of cocaine as relevant
conduct, reducing the offense level by two.
       3
          In January 2009, Thurston and the government filed a joint motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c), based on Amendment 715 to the USSG. The
district court concluded that Amendment 715 did not apply to Thurston, and we affirmed
this judgment on appeal, see United States v. Thurston, 336 Fed. Appx. 795, 798 (10th
Cir. 2009) (unpublished).


                                             -2-
habeas petition asserting that the district court incorrectly applied the two-level

sentencing enhancement and that he suffered ineffective assistance of counsel because

counsel refused to appeal the sentence as requested. In response, the government filed a

motion to enforce Thurston’s plea agreement. After concluding Thurston had sufficiently

shown he requested that counsel appeal his sentence, the district court partially granted

the § 2255 petition to allow Thurston to file an out-of-time appeal.4 Three days later,

Thurston appealed his sentence.

                                              II

       “A defendant may not appeal [his] sentence if [he] has waived [his] appellate

rights in an enforceable plea agreement.” United States v. Smith, 500 F.3d 1206, 1210

(10th Cir. 2007). To determine the enforceability of a waiver of appellate rights in a plea

agreement, we examine: “(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).

       Thurston’s appeal falls within the scope of the waiver of appellate rights. In his

plea agreement, Thurston waived all appeals from his sentence, provided the sentence

was within or below the applicable guidelines range determined by the sentencing court.

The court sentenced Thurston within the guidelines range it calculated.


       4
           The district court dismissed the remainder of the § 2255 petition as premature.

                                             -3-
       To determine if Thurston’s waiver was knowing and voluntary, we “examine

whether the language of [his] plea agreement states that [he] entered the agreement

knowingly and voluntarily” and we “look for an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. Thurston bears the burden of showing

that he did not knowingly and voluntarily waive his appellate rights. United States v.

Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir. 2008). Thurston fails to make this

showing: His plea agreement expressly provided that he “knowingly and voluntarily”

waived his right to appeal. Moreover, at his plea hearing, Thurston acknowledged that he

entered his plea voluntarily and of his own free will. When the court stated the terms of

the waiver of appellate rights and specifically questioned Thurston about them, Thurston

replied that he understood.5

       Finally, enforcement of an appellate waiver results in a miscarriage of justice only

in four circumstances: “[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.” Hahn, 359 F.3d at

1327. None applies. First, there is no evidence in the record indicating that the district

       5
         At his § 2255 hearing, Thurston made statements indicating he believed he could
appeal his sentence, notwithstanding the appellate waiver. But Thurston has waived any
argument that these statements indicate that his plea was not knowing and voluntary by
failing to raise the argument—or any other argument related to his appellate waiver—in
his opening brief. See State Farm Fire & Cas. Co v. Mhoon, 31 F.3d 979, 984 n.7 (10th
Cir. 1994).

                                            -4-
court relied on an impermissible factor in sentencing. Second, although Thurston

contended in his § 2255 petition that he suffered ineffective assistance of counsel, he did

not assert that his counsel was ineffective in the negotiation of the waiver. Third,

Thurston’s sentence does not exceed the statutory maximum of forty years imprisonment,

see 21 U.S.C. § 841(b)(1)(B). Lastly, there is no indication that the waiver affects “the

fairness, integrity or public reputation of judicial proceedings,” as is required to be held

“otherwise unlawful.” Hahn, 359 F.3d at 1329. Enforcing the waiver would thus not

result in a miscarriage of justice.

                                             III

       For the foregoing reasons, we enforce Thurston’s waiver of his appellate rights

and DISMISS the appeal.



                                           ENTERED FOR THE COURT



                                           Carlos F. Lucero
                                           Circuit Judge




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