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

                            FOR THE TENTH CIRCUIT
                                                                   November 12, 2008
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-3243
                                               (D.C. No. 2:07-CR-20135-CM-3)
    ANTONIO P. CARRANZA,                                   (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


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



         Antonio P. Carranza pleaded guilty to one count of conspiracy to possess

with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(B)(2). He sought a two-level decrease in his

offense level under Sentencing Guideline § 5C1.2 (the safety-valve provision).

The district court declined to apply the decrease, determining that he had not met



*
      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 This order and judgment is not binding precedent, except under the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.
§ 5C1.2(a)(5)’s requirement that he be truthful in providing information to the

government. After Mr. Carranza appealed, the government moved to enforce his

plea-agreement waiver of his right to appeal his criminal sentence. We grant the

government’s motion and dismiss this appeal.

                                      Analysis

      In evaluating a motion to enforce, this court determines “(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).

                                Scope of the Waiver

      The first issue is whether the appeal falls within the scope of the waiver.

“We narrowly construe the scope of [a defendant’s] waiver of appeal rights[,]

[b]ut we do not hesitate to hold a defendant to the terms of a lawful plea

agreement.” United States v. Sandoval, 477 F.3d 1204, 1206 (10th Cir. 2007)

(citation and quotation omitted). “[T]he text of the plea agreement is our guide.”

United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004).

      Mr. Carranza’s waiver is very broad:

      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. The defendant is aware that Title 18,

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      U.S.C. § 3742 affords a defendant the right to appeal the conviction
      and sentence imposed. By entering into this agreement, the
      defendant knowingly waives any right to appeal a sentence imposed
      which is within the guideline range determined appropriate by the
      Court. . . . In other words, the defendant waives the right to appeal
      the sentence imposed in this case except to the extent, if any, the
      Court departs upward from the applicable sentencing guideline range
      determined by the Court.

Mot. to Enforce, Ex. 1 at 7-8. By its plain language, the waiver covers all

sentencing issues, including the denial of the safety-valve adjustment.

      Mr. Carranza argues that during plea negotiations the government agreed to

“leave the safety valve issue open,” Aplt. Resp. at 2 (emphasis and quotation

omitted), and that by doing so, the government agreed that the appeal waiver

would not cover his safety-valve arguments. We are not convinced that an

agreement to leave the safety-valve issue open for the district court to decide also

constituted an agreement that the issue was excepted from the general appellate

waiver. But in any event, Mr. Carranza’s interpretation cannot succeed because it

contradicts the plain language of the waiver. See United States v. Porter, 405

F.3d 1136, 1142-43 (10th Cir. 2005) (rejecting defendant’s interpretation of an

appellate waiver because the interpretation contradicted the plea agreement’s

plain language); see also Mot. to Enforce, Ex. 1 at 9-10 (acknowledging that the

written plea agreement contains the entirety of the parties’ agreement).

      Mr. Carranza also argues that, unlike other cases before this court, the plea

agreement does not contain language “specifically includ[ing] the waiver of the


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court’s determination of contested sentencing matters.” Aplt. Resp. at 2. Thus,

he concludes, the waiver cannot cover his safety-valve issue. Given the broad

reach of the waiver to which he actually agreed, however, the government was not

required also to include specific language regarding contested sentencing matters.

      Mr. Carranza’s appeal issue is included within the scope of his waiver, and

therefore the first Hahn factor is satisfied.

                           Knowing and Voluntary Nature

      The second question is whether Mr. Carranza’s waiver was knowing and

voluntary. In evaluating this question, this court examines the plea agreement

and the plea colloquy. See Hahn, 359 F.3d at 1325.

      The plea agreement waiver paragraph acknowledges that the waiver is

knowing and voluntary. Mot. to Enforce, Ex. 1 at 7-8. In addition, the paragraph

immediately before the signature block acknowledges that Mr. Carranza read the

agreement and agrees that its terms embody the parties’ agreement, and that he is

pleading guilty “freely and voluntarily.” Id. at 9-10.

      During the plea colloquy, the court specifically addressed the appeal waiver

and established that Mr. Carranza has read the waiver paragraph and reviewed it

with his attorney. The court confirmed that he knew and understood that he was

relinquishing “[his] right to appeal anything that has to do with [his] prosecution,

conviction, and sentence,” and that “by entering into this plea agreement, [he is]

giving up that right to appeal.” Id., Ex. 2 at 18. The court also confirmed that the

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acceptance of the appeal waiver in particular, and the plea agreement as a whole,

was voluntary. Id. at 18-19, 20.

       Mr. Carranza bears the “burden to present evidence from the record

establishing that he did not understand the waiver.” United States v. Edgar, 348

F.3d 867, 872-73 (10th Cir. 2003). He argues that his waiver was not knowing

and voluntary because he was under the impression that he could appeal a denial

of the safety-valve adjustment. As stated above, this contention flies in the face

of the plain language of the plea agreement. It also contradicts the plea colloquy

before the district court. “Solemn declarations in open court carry a strong

presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Mr. Carranza has failed to fulfill his burden of presenting evidence establishing

he did not understand the waiver, and accordingly the second Hahn factor is

satisfied.

                               Miscarriage of Justice

       The third and final question is whether enforcing the waiver would result in

a miscarriage of justice. A “miscarriage of justice” in this context can be

established only in four situations: “[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 (quotation omitted). To be

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“otherwise unlawful” under Hahn, “the error must seriously affect the fairness,

integrity or public reputation of judicial proceedings as that test was employed in

United States v. Olano, 507 U.S. 725, 732 . . . (1993).” Hahn, 359 F.3d at 1327

(alterations and quotation omitted).

      Mr. Carranza argues that it would be a miscarriage of justice to allow the

government to lead him to believe he could appeal the denial of the safety-valve

provision and then to accept its argument that the general waiver covers this

issue. This appears to be an argument that the waiver is “otherwise unlawful.”

We disagree. If Mr. Carranza believed the parties had agreed that the

safety-valve issue was appealable, he should not have signed a plea agreement

containing a broad waiver and then agreed with the court’s colloquy concerning

that waiver. He could, and should, have ensured that the waiver included a

specific exception for the safety-valve analysis. The waiver was not “otherwise

unlawful,” and none of the other “miscarriage of justice” factors are argued.

Thus, the third Hahn factor is satisfied.

                                       Conclusion

      The motion to enforce is GRANTED, and this appeal is DISMISSED.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




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