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

                             FOR THE TENTH CIRCUIT                          December 15, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-6128
                                                   (D.C. Nos. 5:15-CV-00934-F and
TANYA LEA FRAZIER-LEFEAR,                                5:10-CR-00105-F-1)
                                                            (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
                 _________________________________

      Defendant Tanya Lea Frazier-LeFear appeals from a district court order

dismissing her motion for relief under 28 U.S.C. § 2255 based on a provision in her

plea agreement waiving her right to collaterally challenge her sentence. This court

has granted her a certificate of appealability (COA) on the following issue:

      Did the district court err in concluding the claim set out in Frazier-LeFear’s
      28 U.S.C. § 2255 motion does not fall within the miscarriage-of-justice
      exception to appellate and collateral-rights waivers set out in United States
      v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (en banc)? See, e.g., United
      States v. Daugherty, No. 4:07-CR-00087, 2016 WL 4442801 (N.D. Okla.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Aug. 22, 2016) (holding that identical claim to that asserted by
       Frazier-LeFear in this case does fall within Hahn’s miscarriage-of-justice
       exception).
Order filed September 22, 2016, at 1. Upon consideration of the parties’ briefing, we

hold that under our controlling precedent Ms. Frazier-LeFear’s § 2255 motion does

not fall within Hahn’s miscarriage-of-justice exception and, accordingly, we affirm

the decision of the district court.

                            I. PROCEDURAL HISTORY

       Ms. Frazier-LeFear pleaded guilty to distributing cocaine base in violation of

21 U.S.C. § 841(a)(1). Her plea agreement included a provision “waiv[ing] her right

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

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.” District Court Doc. 33 at 6.

       In calculating Ms. Frazier-LeFear’s offense level and criminal history, the

Presentence Investigation Report (PSR) invoked the career-offender enhancement in

U.S. Sentencing Guidelines Manual (USSG) § 4B1.1, resulting in a sentencing range

of 151-188 months. Her counsel conceded that two prior convictions, one involving

escape from a penitentiary, qualified as crimes of violence supporting imposition of

the enhancement. The district court adopted the PSR, but varied downward to

impose a sentence of 96 months. Ms. Frazier-LeFear did not take an appeal.

       Following issuance of Johnson v. United States, ___U.S.___, 135 S. Ct. 2551

(2015) (holding residual clause in definition of crime of violence used in the Armed

                                             2
Career Criminal Act (ACCA) unconstitutionally vague), Ms. Frazier-LeFear filed the

instant § 2255 motion claiming her trial counsel had been constitutionally ineffective

in failing to challenge application of the career-offender enhancement. She argued

that her escape conviction qualified as a crime of violence solely on the basis of a

residual clause in USSG § 4B1.2 containing language identical to the ACCA’s

residual clause invalidated in Johnson. In short, her § 2255 motion alleged that her

sentence was subject to constitutional challenge on the grounds later recognized in

Johnson and that her counsel’s failure to anticipate Johnson and raise such a

challenge reflected ineffective assistance. The government opposed the motion

arguing, among other things, that it was subject to the collateral-challenge waiver in

the plea agreement.

       The district court stayed proceedings on the § 2255 motion awaiting a decision

regarding Johnson’s retroactive application on collateral review in Welch v. United

States, ___U.S.___, 136 S. Ct. 1257 (2016). In the meantime, this circuit clarified

that Johnson’s holding with respect to the ACCA’s residual clause applied to the

residual clause in the career-offender guideline as well. See United States v. Madrid,

805 F.3d 1204, 1210 (10th Cir. 2015). After Welch confirmed Johnson’s retroactive

applicability, see Welch, 136 S. Ct. at 1265, the district court lifted its stay and

ultimately dismissed the § 2255 motion by enforcing the waiver in the plea

agreement. Noting conflicting decisions from district courts within the circuit

regarding enforcement of collateral-challenge waivers with respect to Johnson

claims, this court granted a COA.

                                             3
                     II. RELEVANT CIRCUIT PRECEDENT

      In United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001), this

court held “that a waiver of collateral attack rights brought under § 2255 is generally

enforceable where the waiver is expressly stated in the plea agreement and where

both the plea and the waiver were knowingly and voluntarily made.” But “the

constraints which apply to a waiver of the right to direct appeal also apply to a

waiver of collateral attack rights.” Id. In particular, “the same exceptions to the

waiver of the right to appeal, if they arise, would be available to the waiver of the

right to collateral attack.” Id. A few years later the en banc court clarified what

those exceptions are, under the general rubric of “miscarriage of justice”:

      Appellate waivers are subject to certain exceptions, including [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 (internal quotation marks omitted). No miscarriage of justice

arises from a waiver “unless enforcement would result in one of the four situations

enumerated.” Id.; see United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011)

(explaining that four exceptions listed in Hahn are exclusive means to establish

miscarriage of justice). We further narrowed the fourth exception by holding that the

error making a waiver unlawful “must seriously affect the fairness, integrity or public

reputation of judicial proceedings, as that test was employed [for plain-error review]

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



                                            4
(parallel citations, brackets, and internal quotation marks omitted). This exception is

the focus of the instant appeal.

      Following Hahn, defendants attempted to sever the “otherwise unlawful”

language of the fourth exception from its association with “the waiver,” by asserting

legal error involving other aspects of the proceedings (typically the determination of

sentence) as a basis for finding a miscarriage of justice. We rejected such arguments,

making it clear that “‘[t]his exception looks to whether the waiver is otherwise

unlawful, not to whether another aspect of the proceeding may have involved legal

error.’” Polly, 630 F.3d at 1001-02 (quoting United States v. Smith, 500 F.3d 1206,

1213 (10th Cir. 2007) (internal quotation marks omitted)); United States v. Shockey,

538 F.3d 1355, 1357 (10th Cir. 2008) (same); see also United States v. Sandoval,

477 F.3d 1204, 1208 (10th Cir. 2007) (“Our inquiry [under the fourth exception] 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.”). We explained

that “‘[t]o allow alleged errors in computing a defendant’s sentence to render a

waiver unlawful would nullify the waiver based on the very sort of claim it was

intended to waive.’” Shockey, 538 F.3d at 1357 (quoting Smith, 500 F.3d at 1213).

Applying this understanding of the exception, we held it to be inapplicable to errors

distinct from the waiver itself,1 obviating consideration of whether such errors met


      1
        Of course, a defendant may preserve a right to appeal isolated sentencing
error by including an explicit exception to that effect in his plea waiver. See, e.g.,
United States v. Groves, 369 F.3d 1178, 1182 (10th Cir. 2004).

                                            5
the Olano standard for error that seriously affects the fairness, integrity or public

reputation of judicial proceedings. See Polly, 630 F.3d at 1001-02; Smith, 500 F.3d

at 1212-13; Sandoval, 477 F.3d at 1208.2

      Two ancillary points touched on in our waiver precedent are germane here.

First, the fact that the alleged error arises out of a change in the law subsequent to the

defendant’s plea does not alter the above analysis. We have pointedly characterized

this conclusion as “obvious” for the following reasons:

      The essence of plea agreements . . . is that they represent a bargained-for
      understanding between the government and criminal defendants in which
      each side foregoes [sic] certain rights and assumes certain risks in exchange
      for a degree of certainty as to the outcome of criminal matters. One such
      risk is a favorable change in the law. To allow defendants or the

      2
         We note that Hahn itself indirectly lent some impetus to the line of argument
that Polly, Smith, and Sandoval explicitly rejected. In Hahn, the appellant claimed
the district court erroneously concluded it had no discretion to make his sentence run
concurrently with a prior sentence. This court held the claim was properly deemed
waived “even if the district court’s conclusion regarding its lack of sentencing
discretion was in error.” Hahn, 359 F.3d at 1329. We said: “Subjecting Mr. Hahn to
a sentence sanctioned by Congress does not constitute an error seriously affecting the
fairness, integrity or public reputation of judicial proceedings. As such, we find that
enforcing Mr. Hahn’s waiver of appellate rights would not constitute a miscarriage of
justice.” Id. By looking to the failure of appellant’s showing under the plain-error
standard, Hahn could have been read as suggesting this was the exclusive basis for
rejecting the miscarriage-of-justice exception (though Hahn’s characterization of that
standard as a “further” limitation on the situation described in the fourth exception,
id. at 1327, suggests otherwise). But Hahn did not include any explicit holding to
that effect—which, again, would have largely gutted the waiver it was intended to
sanction. Thus, Hahn may have opened a debate over the role of alleged sentencing
error in the operation of the fourth exception; but it did not dictate an answer. That
came with the subsequent precedent discussed above, to which we adhere. Of course,
we do not mean to suggest any particular order of analysis under the fourth
exception; in any given case, we (and the district courts) may reject application of
that exception based on a failure to satisfy the plain-error standard without reaching a
perhaps more difficult question as to whether the error at issue is sufficiently tied to
the lawfulness of the waiver itself.
                                            6
      government to routinely invalidate plea agreements based on subsequent
      changes in the law would decrease the prospects of reaching an agreement
      in the first place, an undesirable outcome given the importance of plea
      bargaining to the criminal justice system.
United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005).3 Second, our cases do

not reflect the recognition of any special exception for errors of constitutional

dimension. See, e.g., United States v. Pinson, 584 F.3d 972, 976 (10th Cir. 2009)

(enforcing waiver as to First and Sixth Amendment claims); United States v. Lyons,

510 F.3d 1225, 1233 (10th Cir. 2007) (enforcing waiver as to constitutional speedy

trial claim); Cockerham, 237 F.3d at 1187, 1191 (enforcing waiver as to ineffective

assistance of counsel claims that did not relate to validity of plea).4

               III. ENFORCEMENT OF WAIVER IN THIS CASE

      The dispositive question here, encapsulated in the order granting a COA, is


      3
         A defendant may preserve appellate rights in this respect as well by including
an explicit exception in his waiver for favorable changes in the law. See, e.g., United
States v. Taylor, 413 F.3d 1146, 1151-52 (10th Cir. 2005).
      4
         While in Groves, discussed in note 1 supra, we equated an unconstitutional
sentence with an “illegal sentence,” we did so not for the purpose of categorically
excepting it from waiver as a miscarriage of justice, but for the limited purpose of
applying a particular waiver provision that included an explicit exception for illegal
sentences. See 369 F.3d at 1182. We have made it clear that illegal sentences in this
sense do not trigger the “otherwise unlawful” miscarriage-of-justice exception. See
Shockey, 538 F.3d at 1357-58; see also United States v. Thornburgh, 368 F. App’x
908, 913 (10th Cir. 2010) (discussing Shockey and Groves). Of course, sentences
that are illegal in the specific sense of exceeding statutory authorization are excluded
from waiver under the third miscarriage-of-justice exception set out in Hahn. But
this sense is limited to terms of imprisonment or supervised release that exceed the
statutory maximum for the offense, see, e.g., United States v. Cudjoe, 634 F.3d 1163,
1166 (10th Cir. 2011), and orders for restitution beyond the amount authorized by
Congress, see, e.g., United States v. Gordon, 480 F.3d 1205, 1209-10 (10th Cir.
2007), neither of which is implicated here.
                                            7
whether enforcement of the collateral-challenge waiver in Ms. Frazier-LeFear’s plea

agreement would entail a miscarriage of justice. We know from the precedent

summarized above that our analysis is limited to the four exceptions listed in Hahn.

And of these, the first three are neither argued nor applicable. The issue, therefore, is

whether there are grounds for holding that “the waiver is otherwise unlawful.” Hahn,

359 F.3d at 1327. Noting our case law holding that this exception is implicated only

when the asserted legal error concerns the waiver itself, rather than some other aspect

of the proceedings such as the determination of the defendant’s sentence, the district

court concluded enforcement of Ms. Frazier-LeFear’s waiver to preclude her

Johnson-based sentencing challenge would not entail a miscarriage of justice. We

agree that result is required by this court’s precedent.

A. Miscarriage of Justice is not Reducible to Plain Error

       The order granting COA notes that another district court in this circuit had

held that enforcement of a collateral-challenge waiver with respect to an identical

Johnson-based sentencing challenge would result in a miscarriage of justice. See

United States v. Daugherty, No. 07-CR-87-TCK, 2016 WL 4442801 (N.D. Okla.

Aug. 22, 2016). Daugherty proceeded directly to the Olano standard for identifying

error qualifying as a miscarriage of justice, without first confirming that the error

related to the waiver itself. The district court emphasized that in applying Johnson’s

holding about the vagueness of the ACCA to the similarly worded career-offender

guideline in Madrid, we had stated that the resultant error was remediable on

plain-error review, i.e., it “seriously affects the fairness, integrity, or public

                                              8
reputation of judicial proceedings.” Daugherty, 2016 WL 4442801, at *7 (quoting

Madrid, 805 F.3d at 1211). On that basis, the district court held enforcement of

collateral-review waivers to bar Johnson-based sentencing attacks entails a

miscarriage of justice within the meaning of the fourth exception specified in Hahn.

See also Jaramillo v. United States, Nos. 1:16-CV-87 TS & 1:05-CR-136 TS, 2016

WL 5947265 (D. Utah Oct. 13, 2016) (following Daugherty).

      The analytical mistake in Daugherty is evident from our discussion of circuit

precedent. Our case law explaining Hahn’s fourth miscarriage-of-justice exception

makes it clear that it is the waiver, not some other aspect of the proceeding, that must

be unlawful to undermine the waiver. Ms. Frazier-LeFear’s Johnson-based challenge

to the career-offender enhancement is a challenge to the lawfulness of her sentence,

not to the lawfulness of her waiver. As such, however it may be characterized for

purposes of the Olano plain-error standard, under our precedent it does not provide a

basis for holding enforcement of the waiver to be a miscarriage of justice.

      A second consideration, unique to the waiver context, bolsters that conclusion.

As noted earlier, this court has repeatedly admonished that creating an exception for

sentencing errors “‘would nullify the waiver based on the very sort of claim it was

intended to waive.’” Shockey, 538 F.3d at 1357 (quoting Smith, 500 F.3d at 1213).

In the plain-error context we have adopted a presumption that obvious sentencing

errors satisfy the Olano standard. See United States v. Sabillon-Umana, 772 F.3d

1328, 1333-34 (10th Cir. 2014). Thus, if Hahn’s fourth miscarriage-of-justice

exception were to turn solely on satisfaction of the Olano standard, ignoring the

                                           9
requisite connection between the alleged error and the lawfulness of the waiver itself,

claims of sentencing error—the very sort of claim intended to be waived5—would

routinely trigger the exception and nullify the waiver. In short, district court

decisions like Daugherty and Jaramillo, which have followed this truncated

analytical course, run contrary to the fundamental thrust of this circuit’s waiver

jurisprudence.

B. Constitutional Character of Claim

       Ms. Frazier-LeFear advances two arguments based on the constitutional

character of the error she asserts. First, she argues that she did not agree to be

sentenced unconstitutionally. This argument involves 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].’” Polly, 630 F.3d at 1002 (quoting

Smith, 500 F.3d at 1213). Ms. Frazier-LeFear agreed to relinquish her right to

collaterally attack any sentence within or below the guideline range determined by

the district court. The fact that her relinquishment of this right results in the lost

opportunity to raise a constitutional challenge under Johnson reflects the natural

operation, not the invalidity, of the waiver.

       She also argues more generally that the constitutional character of her claim

should except it from the operation of her waiver. She cites a Seventh Circuit case

       5
        Again, we have repeatedly enforced waivers as to sentence-determination
challenges. See, e.g., Polly, 630 F.3d at 1001-02; Smith, 500 F.3d at 1212-13. The
miscarriage-of-justice standard pointedly makes only one explicit exception for a
particular type of sentencing error—a sentence in excess of the authorized statutory
maximum—which does not apply here.
                                            10
stating “there are limits to waiver; if the parties stipulated to trial by 12 orangutans

the defendant’s conviction would be invalid notwithstanding his consent, because

some minimum of civilized procedure is required by community feeling regardless of

what the defendant wants or is willing to accept.” United States v. Bownes, 405 F.3d

634, 637 (7th Cir. 2005) (internal quotation marks omitted). But Bownes actually

refused to include in this “minimum of civilized procedure” notion an exception for

favorable changes in the law—even one reflecting a “sea change” of the sort brought

about by United States v. Booker, 543 U.S. 220 (2005). See Bownes, 405 F.3d at

637-38. Given our own precedent enforcing waivers with respect to both changes in

law and claims of constitutional error (except those which render the waiver itself

unlawful), this panel is not in a position at this late date to recognize a limitation on

waiver for constitutional challenges to sentence based on post-plea changes in law.

That is not to say, of course, that a knowing and voluntary waiver could never be

unlawful. Anticipating the objection that our strict view of the fourth

miscarriage-of-justice exception effectively renders it a null set, the government

notes that waivers may be unlawful for other reasons, such as a waiver impermissibly

permitting the government to breach the plea agreement, see United States v. Parker,

720 F.3d 781, 787 n.7 (10th Cir. 2013) (stating “claims of government breach of the

plea agreement are not subject to waiver”).




                                            11
                                 IV. CONCLUSION

      Our precedent directs that appeal/collateral review waivers are enforceable

(1) with respect to claims of error that do not render the waiver itself unlawful, even

if the alleged error (2) arises out of a subsequent change in law and (3) is of a

constitutional dimension. Unless and until this court disavows one of these basic

premises, waivers of the sort at issue in this case must be enforced when timely

raised by the government.

      The judgment of the district court is affirmed.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




                                           12
