                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 26, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                    No. 07-4033
                                                    (D.C. No. 1:06-CR -6-TS)
    BR EA NNE JANETTE W ELLS,                              (D. Utah)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, HA RTZ, and HO LM ES, Circuit Judges.




         Defendant Breanne Janette W ells pled guilty to one count of distribution of

a controlled substance in violation of 21 U.S.C. § 841(a)(1). Her plea agreement

states that she “knowingly, voluntarily and expressly waive[s] my right to appeal

any sentence imposed upon me, and the manner in which the sentence is

determined, on any of the grounds set forth in Title 18, United States Code,




*
      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 This order and judgment is not binding precedent, except under the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.
Section 3742 or on any ground whatever.” Plea Agreement, ¶10 at 3. The

agreement did include an exception to the waiver, reserving defendant’s right to

appeal

         (1) a sentence above the maximum penalty provided in the statute of
         conviction . . . ; and (2) a sentence above the high-end of the
         guideline range as determined by the district court at sentencing, or,
         in the event that no such determination is made by the district court,
         a sentence above the high-end of the guideline range as set forth in
         the final presentence report.

Id. Based on an offense level of 29 and criminal history category of VI, the

probation officer calculated the guideline range at 151 to 188 months. The

district court sentenced defendant to 151 months in prison followed by 60 months

of supervised release. Defendant appealed her sentence and the government has

moved to enforce defendant’s appeal waiver under United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). W e grant the motion and

dismiss the appeal.

         Under Hahn, 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.” Id. at 1325. The miscarriage-of-justice

prong requires the defendant to show (a) her sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) her sentence



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exceeded the statutory maximum; or (d) her appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion

addresses these considerations, explaining why none undermines defendant’s

appeal w aiver here. W e agree.

      Defendant does not contest that her appeal falls within the scope of her

appeal waiver nor does she dispute that she knowingly and voluntarily waived her

appellate rights. Defendant argues, however, that her appeal waiver should not be

enforced because the waiver results in a miscarriage of justice. Specifically, she

asserts that “her appeal waiver should not be enforced because of the lengthy

sentence imposed, which is at least thirty one (31) months greater than set forth in

the plea agreement.” M emo. in O pp’n to M ot. to Enforce Plea Agmt. at 2. This

argument does not address any of the four sub-factors necessary to make a

showing on the miscarriage-of-justice prong. There is no showing that her

sentence relied on an impermissible factor, that her counsel was ineffective, that

her sentence exceeded the statutory maximum or that her appeal waiver is

otherwise unlawful. M oreover, her statement mischaracterizes the contents of the

plea agreement, which simply states that the government will recommend that the

defendant be sentenced to no more than 120 months, if all of the conditions of the

plea agreement are met. The government indicated at the sentencing hearing,




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however, that defendant’s post-plea conduct did not warrant any favorable

sentencing recommendations.

      Defendant has not met her burden of establishing that her appeal waiver

should not be enforced. Accordingly, the motion to enforce the waiver is

GRANTED and the appeal is DISM ISSED. The mandate shall issue forthwith.


                                                  ENTERED FOR THE COURT
                                                  PER CURIAM




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