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

                            FOR THE TENTH CIRCUIT                             March 8, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1330
                                                   (D.C. No. 1:17-CR-00138-RBJ-3)
 JUAUN BIRCH, a/k/a Juan,                                     (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

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

appeal waiver in Juaun Birch’s plea agreement. Exercising jurisdiction under

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

                                   BACKGROUND

      Birch pleaded guilty to one count of conspiracy to distribute and possess with

intent to distribute cocaine and/or cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(ii)(II), (b)(1)(B)(iii), and 846. The written plea agreement

contained the following appeal waiver:



      *
         This order and judgment is not binding precedent, except under the doctrines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.
              The defendant is aware that 18 U.S.C. § 3742 affords the right to
      appeal the sentence, including the manner in which that sentence is
      determined. Understanding this and in exchange for the concessions
      made by the Government in this agreement, the defendant knowingly
      and voluntarily waives the right to appeal any matter in connection with
      this prosecution, conviction, or sentence unless it meets one of the
      following criteria: (1) the sentence exceeds the maximum penalty
      provided in the statute of conviction, (2) the sentence exceeds the
      advisory guideline range that applies to a total offense level of 26[,] or
      (3) the government appeals the sentence imposed. If any of these three
      criteria apply, the defendant may appeal on any ground that is properly
      available in an appeal that follows a guilty plea.

Mot. to Enforce, Attach. 1 at 3. It also included a detailed explanation of the possible

penalties and advised Birch that the maximum allowable sentence was forty years in

prison and that, based on the offense level proposed by the Government and Birch’s

estimated criminal history category, the recommended guidelines range was 120 to

150 months’ imprisonment. Id. at 5, 9.

      The Statement by Defendant in Advance of Plea of Guilty (“Statement in

Advance”) that accompanied the written plea agreement included the same appeal

waiver language and sentencing advisement. By signing it, Birch certified that he

had discussed the written plea documents with counsel and that he understood the

terms of the plea agreement, including the appeal waiver and possible penalties.

Birch expressly acknowledged that “[b]ecause of [the appeal waiver], I know that I

cannot seek appellate review of the sentence imposed by the Court in this case,

except in the limited circumstances, if any, permitted by my plea agreement.”

R., Vol. 1 at 60-61. He also acknowledged that he understood that he could ask the

court any questions he had about his plea at the change of plea hearing, and he


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confirmed that his decision to plead guilty was “made after full and careful thought,

with the advice of [his] attorney, and with full understanding of [his] rights” and the

consequences of pleading guilty. Id. at 62.

      At his change of plea hearing, Birch confirmed that he had read and discussed

the written plea documents with counsel before signing them and assured the court

that he understood them. After the court reminded Birch of the possible sentences,

they had the following colloquy about his appeal waiver:

      THE COURT: After I’ve decided what to sentence you to, Mr. Birch,
      then you have a right to an appeal, as everyone does. However, as part
      of your plea agreement here, you’ve compromised your right to appeal
      to some extent. Do you understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: Essentially you have waived your right to appeal unless
      one of several exceptions that are listed in your plea agreement applies.
      If one of those exceptions applies, you can appeal. If no exception
      applies, then you’re going to be stuck with what I do. Do you
      understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: Any questions about your appeal waiver?

      THE DEFENDANT: No, sir.

Mot. to Enforce, Attach. 2 at 9-10. Birch repeatedly declined to ask questions when

given the opportunity to do so, and responded “No, sir,” when the court asked near

the end of the hearing whether he had “any questions about anything we’ve been

talking about.” Id. at 10. Based on Birch’s responses to the court’s questions and its




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observations of his demeanor during the hearing, the court accepted his plea as

having been voluntarily, knowingly, and intelligently entered.

      At the subsequent sentencing hearing, the court adopted a significantly

reduced guidelines range and sentenced Birch at the low end of that range to

72 months in prison. At the end of the hearing, the court stated that Birch “has a

right to appeal within 14 days of the entry of judgment.” Mot. to Enforce, Attach. 3

at 34. Neither Birch nor his attorney suggested that the court’s statement was

confusing in light of the appeal waiver.

      Despite the fact that Birch’s sentence did not fall within any of the exceptions

that would permit an appeal, he filed an appeal challenging the district court’s denial

of his objection to the pre-sentence investigation report and the court’s enhancement

of his sentence based on his supervisory role in the conspiracy.

                                    DISCUSSION

      Whether a defendant’s appeal waiver is enforceable is a question of law.

United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). 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). Birch concedes that the appeal falls within

the scope of the appeal, but claims the waiver was not knowing and voluntary and

that enforcing it would result in a miscarriage of justice. We disagree.

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      Knowing and Voluntary

      When determining whether an appeal waiver was knowing and voluntary,

      Hahn instructs us to look to the plea agreement and the explanation the
      district court provided to the defendant. Thus, we ordinarily look to
      (1) whether the language of the plea agreement states that the defendant
      entered the agreement knowingly and voluntarily; and (2) whether the
      district court conducted an adequate [Rule] 11 colloquy.

United States v. Rollings, 751 F.3d 1183, 1188 (10th Cir. 2014) (internal quotation

marks omitted). “[I]f the defendant did not voluntarily enter into the agreement, the

appellate waiver subsumed in the agreement also cannot stand.” Id. at 1189.

      Birch claims his waiver was not knowing and voluntary because the district

court’s advisement at the change of plea hearing was inadequate. More specifically,

he maintains that the court did not explain the exceptions to the appeal waiver or

advise him that it would “bar him from appealing the length of his sentence,”

including the court’s guidelines range determination. Resp. at 4. He also claims the

court’s statement at the end of the sentencing hearing about his right to appeal

compounded the alleged problems with the oral advisement. Id. at 5. We disagree.

      In determining whether a defendant knowingly and voluntarily waived his

appellate rights, we focus on two factors: “whether the language of the plea

agreement states that the defendant entered the agreement knowingly and

voluntarily” and “whether there was an adequate Federal Rule of Criminal Procedure

11 colloquy.” United States v. Tanner, 721 F.3d 1231, 1233 (10th Cir. 2013)

(internal quotation marks omitted). To avoid enforcement of his appeal waiver,



                                           5
Birch must “present evidence establishing that he did not understand the waiver.”

United States v. Cudjoe, 634 F.3d 1163, 1166 (10th Cir. 2011).

       Birch’s attorney did not object to any deficiencies in the colloquy about the

appeal waiver at the change of plea hearing or otherwise object to the adequacy of the

plea advisement under Fed. R. Crim. P. 11. Accordingly, we “review[] [the] alleged

violations of Rule 11(b) . . . under the exacting plain error standard.” United States

v. Carillo, 860 F.3d 1293, 1300 (10th Cir. 2017). Plain error occurs when there is

“(1) an error; (2) the error is plain or obvious; (3) the error affects the appellant’s

substantial rights (i.e., the error was prejudicial and affected the outcome of the

proceedings); and (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. Where “unpreserved Rule 11(b)(1) errors”

are at issue, “an appellant’s substantial rights are affected only if he can show a

reasonable probability that, but for the error, he would not have entered the plea.”

Id. at 1300-01 (internal quotation marks omitted).

       Here, before entering his guilty plea, Birch discussed the terms of the plea

agreement with his attorney and signed the written plea agreement and Statement in

Advance, confirming that he understood the terms of the plea agreement, including

the possible penalties and the specifics of his appellate waiver. At the change of plea

hearing, the district court reiterated the applicable sentencing ranges and reminded

Birch that he was waiving his right to appeal “unless one of several exceptions that

are listed in your plea agreement applies.” Mot. to Enforce, Attach. 2 at 9. Birch did

not ask the court to explain the exceptions, suggest that the oral advisement

                                             6
contradicted his understanding of the plea agreement, or request clarification from

the court when given an opportunity to do so. Under these circumstances, we

conclude that Birch has failed to meet his burden of showing that his waiver was not

knowing and voluntary and that the alleged deficiencies in the oral plea advisement

affected his substantial rights. See United States v. Rodriguez-Rivera, 518 F.3d 1208,

1215-16 (10th Cir. 2008) (holding that defendant knowingly and voluntarily waived

his right to appeal despite court’s failure to discuss specific waiver provision in plea

colloquy where defendant did not object to omission in the district court, plea

agreement detailed terms of waiver, defense counsel fully explained waiver,

defendant’s signature on written plea documents certified that plea was made freely

and voluntarily, and he confirmed at change of plea hearing that he understood he

had waived his right to appeal). And, contrary to Birch’s contention, the court’s

comment about his right to appeal at the end of the sentencing hearing had no impact

on the voluntariness of his appeal waiver. See United States v. Atterberry, 144 F.3d

1299, 1301 (10th Cir. 1998) (explaining that statements at sentencing “do not affect a

defendant’s prior decision to plead guilty and waive appellate rights” and noting that

the appeal right advisement, which was required by Fed. R. Crim. P. 32(j), “may only

have been intended to inform [defendant] of his right to appeal as limited by the

waiver”).




                                            7
      Miscarriage of Justice

      A waiver of appellate rights in a plea agreement cannot be enforced if doing so

would result in a miscarriage of justice. Hahn, 359 F.3d at 1325. A miscarriage of

justice occurs “[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.” Id. at 1327 (internal

quotation marks omitted).

      Here, Birch’s entire miscarriage of justice argument is that “[b]ecause [he] did

not knowingly and voluntarily waive his right to appeal, it would be a manifest

injustice if [his] appeal waiver were enforced against him.” Resp. at 7. Because his

miscarriage of justice argument is tethered to his failed claim that his waver was not

knowing and voluntary entered, we reject it.

                                   CONCLUSION

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

and dismiss the appeal.


                                            Entered for the Court
                                            Per Curiam




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