                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 10-3337
    v.                                         (D.C. No. 5:09-CR-40073-JAR-1)
                                                           (D. Kan.)
    BRIAN MAURICE WRIGHT,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, LUCERO and TYMKOVICH, Circuit Judges.



         After entering into a plea agreement that included an appeal waiver, Brian

Maurice Wright pleaded guilty to one count of being a felon in possession of

ammunition, in violation of 18 U.S.C. § 922(g). The district court sentenced him

to the statutory maximum of 120 months of imprisonment, which was inside the

guidelines range as calculated by the court but well outside the range that both



*
      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 This order and judgment is not binding precedent, except under the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.
defense counsel and the prosecutor had anticipated when negotiating the plea

agreement. Mr. Wright appealed, spurring the United States to move to enforce

the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (en banc) (per curiam).

      Under Hahn, in evaluating a motion to enforce a 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.” Id. Mr. Wright concedes that his challenge to his sentence is within the

scope of the waiver and that the record before this court would not support a

finding that the waiver was unknowing or involuntary. Therefore, we need not

address the first or second factors. See United States v. Porter, 405 F.3d 1136,

1143 (10th Cir. 2005). Instead, we consider only Mr. Wright’s contention that

enforcing the waiver would result in a miscarriage of justice.

      A miscarriage of justice occurs where (1) “the district court relied on an

impermissible factor such as race”; (2) “ineffective assistance of 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 (quotations omitted). For the waiver to be

otherwise unlawful, “the error must seriously affect the fairness, integrity or




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public reputation of judicial proceedings.” Id. (alterations and quotations

omitted).

      Mr. Wright’s miscarriage-of-justice argument arises from the district

court’s decision, under Guideline § 2X1.1, to cross-reference the firearms

guideline with the attempted murder guideline, rather than to decline to apply the

cross-reference or, at most, to cross-reference the aggravated assault guideline.

The cross-reference increased the applicable guidelines range to the statutory

maximum, which was twice the length of imprisonment that defense counsel and

the prosecutor had anticipated when negotiating the plea agreement.

Commendably, Mr. Wright’s counsel frankly acknowledges that he did not

foresee the cross-reference, so “the defendant was misled by counsel regarding

the advisory guideline range he could expect at the time of sentencing.” Resp. at

3. Counsel contends that this mistake “should be held to ‘seriously affect the

fairness, integrity, or public reputation of judicial proceedings . . . .’” Id.

(quoting Hahn, 359 F.3d at 1327). He asserts, “a fairness issue rises from

counsel’s failure to recognize that the cross-reference would increase the advisory

guidelines sentence to the statutory maximum sentence. Therefore, to deny

review of such a great increase in the guidelines sentence would seem to patently

affect the fairness of the proceeding.” Id. at 4 (citation omitted).

      But a bare complaint “that enforcement of the waiver would seriously

affect the fairness and integrity of the proceedings [] does not fit into any of the

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[miscarriage-of-justice] categories.” United States v. Polly, 630 F.3d 991, 1001

(10th Cir. 2011). Polly quoted the court’s prior discussion in United States v.

Smith, 500 F.3d 1206 (10th Cir. 2007):

      Ms. Smith misunderstands the miscarriage of justice exception to
      enforcement of a waiver of appellate rights. This exception looks to
      whether “the waiver is otherwise unlawful,” [Hahn, 359 F.3d at
      1327] (emphasis added), not to whether another aspect of the
      proceeding may have involved legal error. Ms. Smith’s argument
      that alleged errors in the court’s determination of her sentence should
      invalidate her appellate waiver illustrates what Hahn called “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].” Id. at 1326 n.12 (discussing whether an appeal waiver
      was knowing and voluntary) . . . .

Polly, 630 F.3d at 1001-02 (quoting Smith, 500 F.3d at 1212-13). “Because

[appellant] does not challenge the lawfulness of the waiver itself, enforcing the

waiver as to his claim [of sentencing error] does not result in a miscarriage of

justice.” Id. at 1002. Similarly, Mr. Wright does not argue that the waiver itself

is unlawful; rather, his issues relate to sentencing error and counsel’s advice

regarding his sentence. Therefore, we cannot conclude that enforcing his appeal

waiver results in a miscarriage of justice.

      The motion to enforce the plea agreement is GRANTED and this appeal is

DISMISSED.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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