                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       January 19, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                    No. 06-6333
                                                    (D.C. No. 05-CR-67-M )
    JASON W AYN E WALLER,                                (W .D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and M cCO NNELL, Circuit Judges.




         Defendant Jason W ayne W aller pled guilty, pursuant to a plea agreement,

to being in possession of a stolen firearm, in violation of 18 U.S.C. § 922(j).

Pursuant to the plea agreement, M r. W aller waived his right to “[a]ppeal or

collaterally challenge his guilty plea and any other aspect of his conviction, . . .

[and to] [a]ppeal, collaterally challenge, or move to modify . . . his sentence as




*
      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 This order and judgment is not binding precedent, except under the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.
imposed by the Court and the manner in which the sentence is determined,

provided the sentence is within or below the advisory guideline range determined

by the Court to apply to this case.” M ot. to Enforce, Ex. 2, at 5. The district

court sentenced him to eighty-four months of imprisonment, which was within the

applicable advisory guideline range of 84 to 105 months.

       Although M r. W aller waived his right to appeal his sentence, he

nonetheless filed this appeal raising five challenges to the district court’s

determination of his sentence. The government has filed a motion to enforce

M r. W aller’s waiver of appellate rights under United States v. Hahn, 359 F.3d

1315 (10th Cir. 2004) (en banc) (per curiam). M r. W aller has responded that the

motion should be denied because enforcing the plea agreement will result in a

miscarriage of justice. As discussed below, we grant the government’s motion

and dismiss the appeal.

      This court will enforce a criminal defendant’s waiver of his right to appeal

so long as the following three elements are satisfied: (1) “the disputed appeal

falls within the scope of the waiver of appellate rights,” (2) “the defendant

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

waiver would [not] result in a miscarriage of justice.” Id. 359 F.3d at 1325. As is

applicable here, a miscarriage of justice will result if “the w aiver is otherwise

unlawful,” to the extent that the alleged error “seriously affect[s] the fairness,




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integrity or public reputation of judicial proceedings.” Id. at 1327 (quotation

omitted; citing United States v. Olano, 507 U.S. 725, 732 (1993)).

      The government’s motion to enforce addresses each of the three Hahn

prongs. M r. W aller concedes that the sentence falls within the advisory guideline

range and that he knowingly and voluntarily waived his right to appeal as stated

in the plea agreement. M r. W aller opposes the motion only on the third,

miscarriage of justice, prong. W e therefore address only that prong. See United

States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing court need

not address each Hahn factor if defendant does not make argument with respect to

that factor), cert. denied, 126 S. Ct. 550 (2005).

      M r. W aller argues that enforcement of the plea agreement would seriously

affect the fairness, integrity, or public reputation of judicial proceedings. He

argues that the district court erred in imposing a two-level sentence enhancement

under U .S.S.G. § 2K2.1(b)(4), which provides for an enhancement if any firearm

was stolen. M r. W aller contends this enhancement resulted in him being punished

twice for the same offense of possessing stolen firearms. He also contends that

the district court erred in applying certain previous criminal convictions to

increase his criminal history category.

      M r. W aller misinterprets the miscarriage of justice exception, which looks

to whether “the waiver is otherwise unlawful,” Hahn, 359 F.3d at 1327 (emphasis

added), not whether some other aspect of the proceeding may have involved legal

                                          -3-
error. M r. W aller’s contention that his appeal waiver should be excused due to

alleged errors in the determination of his sentence entails w hat Hahn noted as

“the logical failing[] of focusing on the result of the proceeding, rather than on

the right relinquished, in analyzing whether an appeal waiver is [valid].” 1 Id. at

1326 n.12. “The relevant question . . . is not whether [defendant’s] sentence is

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

Porter, 405 F.3d at 1144. Indeed, to hold that alleged errors under the sentencing

guidelines render an appeal waiver unlawful would nullify the waiver based on

the very sort of claim it was intended to waive. This circular argument has been

repudiated in many cases. See, e.g., United States v. M organ, 386 F.3d 376,

381-82 (2d Cir. 2004), cert. denied, 543 U.S. 1169 (2005); United States v. Andis,

333 F.3d 886, 892 (8th Cir. 2003); United States v. Brown, 232 F.3d 399, 403-04

(4th Cir. 2000); United States v. Kratz, 179 F.3d 1039, 1041 (7th Cir. 1999).

      M r. W aller argues that this court should not enforce the appeal waiver

because, at the time he entered the plea agreement, he did not know what his

sentencing range w ould be or what facts the district court might use to increase

his sentence under the advisory guidelines. He cites to Second Circuit authority

holding that, under some circumstances, a waiver of appeal will not be enforced if




1
      W hile Hahn drew this distinction in determining whether an appeal waiver
was knowing and voluntary, 359 F.3d at 1326 & n.12, it also applies in
determining whether such a waiver w as otherwise law ful.

                                          -4-
the plea agreement does not specify an expected sentencing guideline range. See

United States v. Rosa, 123 F.3d 94, 100-01 (2d Cir. 1997). “H owever, in this

Circuit we have consistently and repeatedly held that broad waivers are

enforceable even where they are not contingent on the ultimate sentence falling

within an identified sentencing range.” United States v. M ontano, __ F.3d __,

No. 06-2009, 2007 W L 10768, at * 3 (10th Cir. Jan. 3, 2007) (citing cases and

expressly declining to adopt Second Circuit rule).

      The plea agreement here made clear the maximum sentence M r. W aller

faced for the crime of conviction, that he gave up multiple constitutional and

appellate rights in exchange for concessions from the government, and that his

sentence would be determined in accordance with 18 U.S.C. § 3553(a), taking

into consideration the applicable guidelines. As in Porter, the sentence imposed

by the district court complied with the terms of the plea agreement and with the

understanding of the plea M r. W aller expressed at the plea hearing. M r. W aller

has not demonstrated that it would be a miscarriage of justice to enforce the

waiver.

             The government’s motion to enforce the waiver is GRANTED and

the appeal is DISM ISSED. The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT
                                       PER CURIAM



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