                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 11, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-3243
                                               (D.C. No. 2:06-CR-20099-CM-2)
    WILLIAM MORRISON, a/k/a Marco                          (D. Kan.)
    Tyler,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, LUCERO, and O’BRIEN, Circuit Judges.



         Defendant William Morrison entered a guilty plea to one count of wire

fraud and one count of money laundering. His plea agreement included a waiver

of his right to appeal any matter in connection with his sentence. Mr. Morrison

has now filed an appeal seeking to challenge the district court’s denial of his

motion to continue his sentencing hearing and other matters related to the


*
      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 This order and judgment is not binding precedent, except under the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.
sentencing hearing. The government has moved to enforce the appeal waiver in

Mr. Morrison’s plea agreement pursuant to our decision in United States v. Hahn,

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

dismiss the appeal.

                                  I. Background

      The issues in this appeal arose out of the sentencing proceedings in the

district court after Mr. Morrison entered into the plea agreement and entered his

guilty plea at his change-of-plea hearing. Mr. Morrison’s sentencing hearing was

initially scheduled to take place on June 23, 2009. His attorney moved for two

continuances of the hearing and it was ultimately rescheduled for the end of

August. On July 9, a preliminary presentence report (PSR) was prepared and

disclosed to Mr. Morrison’s counsel. Mr. Morrison did not file any objections,

and, on August 13, the final PSR was filed. That same day, after the final PSR

had been filed, Mr. Morrison filed objections to the preliminary PSR without

giving any explanation for their untimely filing.

      On Monday, August 17, Mr. Morrison moved to continue his sentencing

hearing, which was scheduled for August 21. In that motion, Mr. Morrison’s

counsel explained that, although he had prepared objections to the preliminary

PSR on July 25, he had mistakenly failed to timely file them. On August 19, the

district court denied the motion. Later that day, the government filed its response

to Mr. Morrison’s objections. Mr. Morrison then filed another motion to continue

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the sentencing hearing, arguing it would violate his rights under Fed. R. Crim. P.

32(g) to proceed to sentencing so soon after he filed his objections to the PSR.

The government opposed the continuance, asserting Mr. Morrison had neither

sought nor received leave of court to file his objections out of time. The

government further stated it had already responded to the objections, the response

did not contain any new information or arguments that would not have been

anticipated by the defense, and Mr. Morrison could establish no prejudice from

proceeding with sentencing as scheduled.

      At the hearing on August 21, the district court first addressed

Mr. Morrison’s pending motion to continue his sentencing hearing. The court

stated it considered the PSR filed on August 13 to be the final PSR, the disclosure

of the report fulfilled the requirements of Rule 32, Mr. Morrison received a copy

of it, and he could not rely on his own failure to file timely objections to claim

error in the sentencing proceedings. The court further stated that, although

Mr. Morrison’s objections were untimely, it would consider them. The court then

denied Mr. Morrison’s motion for a continuance.

      After the court’s ruling, Mr. Morrison’s counsel indicated his intent to not

have his client participate in the sentencing hearing. The court then spoke to

Mr. Morrison directly. Mr. Morrison acknowledged he had reviewed the

preliminary version of the PSR, had discussed possible objections with his

counsel, and it was his decision (based on the advice of counsel) to not participate

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in the sentencing hearing. After that discussion, the hearing proceeded with the

government’s evidence and arguments with regard to sentencing Mr. Morrison.

At the conclusion of the hearing, the court ruled on Mr. Morrison’s previously

filed objections. The court then sentenced Mr. Morrison to 100 months on each

count, to be served concurrently; this sentence was at the low end of the advisory

guideline range. Mr. Morrison filed an appeal, challenging his sentencing

proceedings, and the government filed a motion to enforce the appellate waiver in

Mr. Morrison’s plea agreement.

                                  II. Discussion

      In determining whether an appeal should be dismissed based on an appeal

waiver, 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.” Hahn, 359 F.3d at 1325. Mr. Morrison argues his

appeal is outside of the scope of his appeal waiver, his waiver was not knowing

and voluntary, and enforcing the waiver would result in a miscarriage of justice.

                                     A. Scope

      Mr. Morrison asserts he is not challenging the substantive reasonableness

of his sentence, but rather the procedures that were followed with respect to his

sentencing. He contends he did not waive his right to challenge the findings in

his PSR. But Mr. Morrison did have the opportunity to challenge the findings in

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his PSR and those objections were considered by the district court. Morever, the

scope of Mr. Morrison’s waiver includes “any matter in connection with . . . [his]

sentence.” Mot. to Enforce, Attach. at A10 (plea agreement) (emphasis added).

Because Mr. Morrison’s appeal presents a challenge to a matter in connection

with his sentence, his appeal falls within the scope of his appellate waiver.

                            B. Knowing and Voluntary

      Mr. Morrison next argues his appellate waiver was not knowing and

voluntary because he agreed to plead guilty under the terms of the plea agreement

based on his understanding that he would be able to challenge the findings in the

PSR. Because he claims he was not afforded that opportunity, he contends his

waiver was not knowing and voluntary.

      “When determining whether a waiver of appellate rights is knowing and

voluntary, we especially look to two factors. First, we examine whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily. Second, we look for an adequate Federal Rule of

Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325 (citation omitted).

Mr. Morrison does not appear to challenge the language in his plea agreement,

which expressly states, “[t]he defendant acknowledges that he is entering into this

agreement and is pleading guilty because the defendant is guilty and is doing so

freely and voluntarily.” Mot. to Enforce, Attach. at A11-A12 (plea agreement).




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Rather, Mr. Morrison seems to be suggesting that an error occurred during his

plea colloquy.

      Early in his change-of-plea hearing, before the court’s discussion with

Mr. Morrison about his appellate waiver, the district court was explaining the

process by which the court would determine his sentence. As part of this, the

district court discussed the sentencing guidelines, noting that the court would not

be able to make a determination about Mr. Morrison’s sentence until after the

presentence investigation report was prepared, and the government and

Mr. Morrison “had an opportunity to challenge the facts as reported by the

probation office.” Id. at A31 (transcript of change-of-plea hearing). The court

then asked Mr. Morrison if he understood he had the right to make such a

challenge and Mr. Morrison responded that he did.

      Later in the hearing, the district court reviewed the language in the plea

agreement that discussed the waiver of Mr. Morrison’s right to appeal or

collaterally attack any matter in connection with his prosecution, conviction, or

sentence. Id. at A40-42. Mr. Morrison acknowledged that he understood this

waiver provision in his plea agreement, id. at A40-41, and that no one coerced or

threatened him to enter into the agreement, id. at A41-42.

      But Mr. Morrison contends he only entered a guilty plea because he was

“assured” by the court he would be able to object to the PSR. Resp. to Mot. to

Enforce at 12-13. And he now claims his appellate waiver was not knowing and

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voluntary because he was not given the opportunity to make such a challenge.

First, the district court accurately relayed to Mr. Morrison that he would be given

the opportunity to object to the factual findings in the PSR. And, as a factual

matter, the record reflects that Mr. Morrison was given the opportunity to

challenge the PSR because his counsel filed objections and the district court

considered the objections, even though they were untimely. Mot. to Enforce,

Attach. at A203-211 (transcript of sentencing hearing).

      Second, Mr. Morrison relies on United States v. Wilken, 498 F.3d 1160

(10th Cir. 2007) to support his argument that his waiver was not knowing and

voluntary, but in Wilken, the district court’s “explanation of the waiver differed

substantially from that in the written plea agreement,” id. at 1167. Because this

created ambiguity as to the scope of the defendant’s waiver, we held the waiver

was not knowing and voluntary. See id. at 1168-69. Here, unlike the court in

Wilken, the district court did not inject any ambiguity during the plea colloquy

about the scope of the waiver contained in Mr. Morrison’s plea agreement.

Accordingly, we conclude Mr. Morrison’s waiver was knowing and voluntary.

                             C. Miscarriage of Justice

      Finally, Mr. Morrison asserts the appeal waiver in his plea agreement

should not be enforced because it would result in a miscarriage of justice. An

appeal waiver results in a miscarriage of justice where: (1) “the district court

relied on an impermissible factor such as race;” (2) “ineffective assistance of

                                         -7-
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 (quotation omitted).

      Mr. Morrison contends his waiver is “otherwise unlawful.” Id. In order to

meet his burden on this factor, see United States v. Anderson, 374 F.3d 955, 959

(10th Cir. 2004), “‘the error [must] seriously affect[] the fairness, integrity or

public reputation of [the] judicial proceedings.’” Hahn, 359 F.3d at 1327 (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)). Mr. Morrison argues the

appeal waiver should not be enforced because the court failed to follow the proper

procedure when sentencing him and this error affected the outcome of his

sentencing proceedings, citing to Olano, 507 U.S. at 734.

      We disagree with Mr. Morrison’s characterization of the district court

proceedings. As the government aptly stated:

      The defendant should not be permitted to deprive the government of
      the benefit of the bargain simply by filing his objections late and
      then refusing to participate in the sentencing hearing.

             Indeed, the only adverse affect on the fairness, integrity, or
      public reputation of judicial proceedings would be if this Court
      allows the defendant to avoid the effect of his waiver by creating
      error and then benefitting from it.

Mot. to Enforce at 18. We conclude Mr. Morrison has not demonstrated that

enforcing his appeal waiver would result in a miscarriage of justice.




                                          -8-
      Finally, we note the government suggested that “[t]here will be a time and a

place to address errors by [Mr. Morrison’s] counsel, but this is not it.” Id.

Although not specifically cited by the government, this reference is presumably to

our decision in United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.

2001), in which we held “that a plea agreement waiver of postconviction rights

does not waive the right to bring a [28 U.S.C.] § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or

waiver.” And we further note Mr. Morrison’s plea agreement contained an

express reference to Cockerham, stating he was waiving his right to bring a

§ 2255 petition, “except as limited by United States v. Cockerham, 237 F.3d

1179, 1187 (10th Cir. 2001).” Mot. to Enforce, Attach. at A10.

                                  III. Conclusion

      Accordingly, because the issues in this appeal are within the scope of the

appeal waiver, Mr. Morrison’s waiver was knowing and voluntary, and enforcing

the waiver would not result in a miscarriage of justice, 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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