                                                                               F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 JUN 9 2004
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                           No. 03-5158
 PATRICK SEAN HARDY,                                  (D.C. No. 02-CR-120-EA)
                                                          (N.D. Oklahoma)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.


      Defendant Patrick Sean Hardy pled guilty to possession of methamphetamine

precursors with intent to facilitate the manufacture of methamphetamine, in violation of

21 U.S.C. § 843(a)(6) and (d)(2). Hardy appeals the 86-month sentence imposed. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and dismiss the appeal.

      On appeal, Hardy contends, as he did at sentencing, that the district court erred (1)

by applying the 2002 Sentencing Guidelines instead of the 2000 Guidelines, which



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
resulted in a greater sentence, in violation of the ex post facto clause; (2) by attributing to

him possession of 51.84 grams of pseudoephedrine based on empty boxes found during

the January 2001 search, and (3) by sentencing him pursuant to U.S.S.G. § 2D1.1, which

is applicable to defendants involved in the manufacture or attempted manufacture of

methamphetamine when manufacture or attempted manufacture was not established here.

                                               I.

       We must first determine whether our consideration of the issues raised is precluded

by Hardy’s waiver of his appellate rights. In the plea agreement, Hardy agreed to plead

guilty to possession, between July 1999 and June 2001, of methamphetamine precursors

as charged in an amended information, and “to waive all appellate rights, including any

and all collateral attacks including but not limited to those pursued by means of a writ of

habeas corpus, save and except claims of ineffective assistance of counsel.” ROA, Vol. I,

Doc. 173 at 3. Further, at the change of plea hearing, Hardy’s counsel stated that Hardy

agreed to waive all appellate rights except as limited above. In addition, in Hardy’s

colloquy with the court, the court asked Hardy if he understood the scope of the appellate

waiver and explained the scope of the waiver. In response to a series of questions posed

by the court, Hardy stated that he understood the scope of the waiver. In United States v.

Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc), this court adopted a three-pronged

analysis to determine whether appeals brought after a defendant has entered into an

appeal waiver come within the waiver: “(1) whether the disputed appeal falls within the


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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.”

                                       Scope of waiver

       Hardy argues the waiver does not bar him from raising sentencing issues on appeal

because the waiver did not specifically refer to or include sentencing issues. According

to Hardy, when he waived “all appellate rights,” he was only waiving the right to

challenge the underlying conviction. This argument is counter to the plain language of

the waiver and Hardy cites no case law in support of his argument.

       In the alternative, Hardy argues a sentence in violation of the Constitution is not

within the scope of an appellate waiver. He argues the district court’s use of the 2002

Guidelines resulted in a longer sentence and violated the ex post facto clause. In support

of his ex post facto argument, Hardy cites United States v. Black, 201 F.3d 1296, 1301

(10th Cir. 2000), and United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). While

Hardy quotes favorable phrases from these cases, neither case indicates that all

constitutional sentencing errors are outside the scope of appellate waivers. Rather, the

cases indicate that a defendant’s waiver of appellate rights does not waive the right to

appeal certain types of constitutional errors, i.e., sentences in excess of the statutory

maximum or sentences tainted by racial bias. Hardy’s sentence was not in excess of the

statutory maximum and there is no indication that the sentence was based on race or any


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other impermissible factor.

                                 Knowing and voluntary waiver

          Hardy does not dispute that he knowingly and voluntarily waived his appellate

rights.

                                     Miscarriage of justice

          In Hahn, this court stated that enforcement of an appellate waiver results in a

miscarriage of justice only “‘[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 (quoting United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001)). There is no

indication in the record that the district court relied on an impermissible factor such as

race or that Hardy’s counsel was ineffective in the negotiation of the waiver. His

sentence did not exceed the statutory maximum of ten years. Nor does Hardy contend

that the waiver was otherwise unlawful.

                                                II.

          In summary, Hardy has waived his right to raise the sentencing issues presented.

He waived “all appellate rights” when he executed the plea agreement. We conclude the

issues asserted here come within the purview of that waiver and that his waiver was

knowingly and voluntarily entered. Further, Hardy has not alleged or shown that our


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enforcement of the waiver would result in a miscarriage of justice.

       The appeal is DISMISSED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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