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

                             FOR THE TENTH CIRCUIT                         December 20, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-4040
                                                  (D.C. No. 1:15-CR-00052-DN-1)
ROBERT AARON DAVIS,                                          (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
                 _________________________________

      We dismiss this appeal because Defendant Robert Aaron Davis executed an

enforceable appeal waiver.

      Defendant pleaded guilty to one count of possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5). As part of his plea agreement under Fed. R.

Crim. P. 11(c)(1)(C), the parties stipulated that he would be sentenced to serve 120

months in prison, and he agreed “to pay all restitution as ordered by the Court,” R.,

Vol. 1 at 20. The plea agreement also included a broad waiver of his right to appeal

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
his sentence, unless it was greater than the sentence set forth in the plea agreement.

The district court accepted Defendant’s guilty plea.

      At sentencing, the government informed the district court that two victims

indicated they would be satisfied with restitution ranging from $1,000 to $3,000. A

third victim withdrew a request for restitution. Defendant, however, asked the court

“to order restitution no greater than $1,000,” id., Vol. 3 at 13, because of his age and

the length of his imprisonment, his potential difficulty finding employment and

competing financial burdens upon release, and the “layers of separation . . . from

[him] to the initial harm,” id. at 14. The court acknowledged the financial burden

posed by restitution but ordered that he pay $2,000 to each of the two victims who

sought restitution.

      Despite his waiver, Defendant appealed the restitution portion of his sentence,

arguing that the district court violated Paroline v. United States, 134 S. Ct. 1710

(2014), by not explaining the causal basis for imposing the amounts of restitution.

The government responded by arguing that we should enforce the appeal waiver and

dismiss this appeal, applying the analysis set forth in our decision in United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Defendant has not

filed a reply brief. We review de novo the enforceability of an appeal waiver. See

United States v. Leyva-Matos, 618 F.3d 1213, 1216 (10th Cir. 2010).

      Under Hahn we consider three factors in evaluating an appeal waiver:

“(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

                                           2
rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.”

359 F.3d at 1325. All three factors support enforcing the waiver here.

      First, the restitution order falls squarely within the scope of the appeal waiver.

Under the plea agreement Defendant agreed to waive his right to appeal “any

sentence imposed upon [him],” R., Vol. 1 at 19, ¶ 11(c)(1), and the agreement

defined the term sentence to include “any orders of restitution,” id. at 20.

      Second, the record demonstrates that Defendant knowingly and voluntarily

waived his appellate rights. See Hahn, 359 F.3d at 1325 (in determining whether

waiver was knowing and voluntary, the court especially examines language of the

plea agreement and adequacy of Fed. R. Crim. P. 11 colloquy). He signed the plea

agreement stating that he fully understood he had the right to appeal his sentence but

“knowingly, voluntarily[,] and expressly waive[d]” that right unless his sentence was

greater than the sentence set forth in the plea agreement. R., Vol. 1 at 18, 19.

Further, during the plea colloquy the district court repeatedly informed Defendant—

and he acknowledged he understood—that restitution could be imposed as part of his

sentence under the plea agreement. The court also informed him that by entering into

the plea agreement, he was “knowingly, voluntarily, and expressly waiving [his] right

to appeal [his] sentence unless the sentence imposed [was] greater than the sentence

set forth in [the plea] agreement.” Id., Vol. 3 at 48. Defendant confirmed that he

understood the charges, that he was not under the influence of drugs or alcohol at the

plea hearing, and that he had enough information to enter his plea. Moreover, he

indicated that he understood he was knowingly and voluntarily waiving his right to

                                            3
appeal his sentence as set forth in the plea agreement. The court therefore accepted

his guilty plea, finding that he was fully competent and capable of entering an

informed plea, that he was aware of the consequences of his plea, and that he entered

his guilty plea knowingly and voluntarily.1

      Third, nothing in the record suggests that enforcing the appeal waiver would

result in a miscarriage of justice. A miscarriage of justice arises when the district

court relies on an impermissible factor such as race; ineffective assistance of counsel

in connection with the negotiation of the waiver rendered it invalid; the sentence

exceeds the statutory maximum; or the waiver is otherwise unlawful. See United

States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007). For unlawfulness to

invalidate the waiver, it must “seriously affect the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotation marks omitted).

      None of these circumstances is present here. There is no indication that the

court relied on an impermissible factor such as race. The dissatisfaction with his

attorney expressed by Defendant at the plea hearing related only to the length of time

it took to enter his guilty plea, not any claimed ineffectiveness in negotiating the

waiver; and the plea agreement itself states that Defendant was satisfied with his

lawyer. The 10-year sentence did not exceed the statutory maximum. And although

Defendant contends that the restitution order constitutes an illegal sentence, this


      1
         Defendant did not know the specific restitution amounts at the time he
entered his plea and waived his appellate rights, but he knew the court would impose
restitution, which satisfies the knowing element. See United States v. Rollings,
751 F.3d 1183, 1192 (10th Cir. 2014).
                                            4
would not create a miscarriage of justice. “Our inquiry is not whether the sentence is

unlawful, but whether the waiver itself is unlawful because of some procedural error

or because no waiver is possible.” Id. The alleged sentencing error would not render

the waiver unlawful and unenforceable. See id.

      Thus, all three factors support enforcement of the waiver. We enforce

Defendant’s appellate waiver and dismiss this appeal.

                                           Entered for the Court


                                           Harris L Hartz
                                           Circuit Judge




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