                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 2, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 07-3359
                                               (D.C. No. 2:06-CR-20160-JWL-1)
    DANIEL ANITA,                                          (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


         Daniel Anita pleaded guilty to violating 21 U.S.C. § 846 (conspiracy to

distribute cocaine; possession of cocaine with intent to distribute). Under the

terms of his plea agreement, Mr. Anita waived “any right to appeal or collaterally

attack any matter in connection with [his] prosecution, conviction and sentence.”

Mot. to Enforce, Ex. 1 (Plea Agreement) at 9, para. 13. The district court

formulated a sentencing range of 135 to 168 months and imposed the maximum


*
      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 This order and judgment is not binding precedent, except under the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.
sentence of 168 months. Despite waiving his appellate rights, Mr. Anita

appealed, prompting the government to file a motion to enforce the appeal waiver

under United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)

(per curiam). We now grant the government’s motion to enforce and dismiss the

appeal.

      Under Hahn, we will enforce an appeal waiver if: (1) “the disputed appeal

falls within the scope of the waiver”; (2) “the defendant knowingly and

voluntarily waived his appellate rights”; and (3) “enforcing the waiver would

[not] result in a miscarriage of justice.” Id. A miscarriage of justice occurs when

(1) the district court relies on an impermissible factor such as race; (2) ineffective

assistance of counsel in connection with the negotiation of the waiver renders it

invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is

otherwise unlawful, i.e., the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. at 1327.

      In his response to the government’s motion to enforce, Mr. Anita initially

claims his appeal does not fall within the scope of his appeal waiver because the

waiver is ambiguous. The source of that ambiguity, he contends, is that the

appeal waiver alerted him to 18 U.S.C. § 3742, which afforded him the right to

appeal his conviction and sentence, but failed to reference 28 U.S.C. § 1291,

which also confers jurisdiction over sentencing appeals. He claims the failure to

reference this alternative basis of appellate jurisdiction renders his appeal waiver

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ambiguous. This is a frivolous argument. Section 1291 confers no substantive

appellate rights on Mr. Anita that he could waive. The statute simply provides

the courts of appeals with statutory subject matter jurisdiction “from all final

decisions of the district courts.” 28 U.S.C. § 1291. The omission of language in

the appeal waiver concerning § 1291 does not render the waiver ambiguous.

      Mr. Anita also contends that enforcing his appeal waiver would constitute a

miscarriage of justice because the district court improperly enhanced his sentence

under U.S.S.G. § 2D1.1(b)(1) based on disputed findings concerning possession

of a firearm. But this is precisely the sort of argument Mr. Anita agreed to forgo

by signing the appeal waiver:

      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 upwards from the
      applicable sentencing guideline range determined by the court.

Mot. to Enforce, Ex. 1 (Plea Agreement) at 9, para. 13.

      The court determined that Mr. Anita’s appropriate sentencing range was

135 to 168 months: it accordingly imposed the maximum sentence within that

range. The court did not depart from the applicable sentencing range such that

Mr. Anita might claim his appeal falls into the exception for upward departures.

Mr. Anita’s contention is simply that his sentence is unlawful because the

enhancement was based on contested findings and deprived him of a two-level


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reduction. But “[t]he relevant question is not whether [his] sentence is

unlawful . . ., but whether . . . his appeal waiver itself [is] unenforceable.” United

States v. Porter, 405 F.3d 1136, 1144 (10th Cir.). Based on the materials before

us, nothing suggests the appeal waiver is unenforceable, and Mr. Anita offers

nothing compelling us to conclude otherwise.

      Finally, because Mr. Anita presents no arguments under the second Hahn

factor, we do not consider it. See id. at 1143 (declining to address second Hahn

factor where defendant did not raise any issues relating to that factor).

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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