                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 16, 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. 06-3249
                                                 (D.C. No. 02-CR-40131-JAR)
    DA RRELL TRIPLETT,                                     (D . Kan.)

              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, M cCO NNELL, and HO LM ES, Circuit Judges.




          On September 22, 2003, defendant pled guilty to one count of conspiracy to

possess with intent to distribute five kilograms of a mixture containing cocaine

and one count of possession of five kilograms or more of a mixture containing

cocaine. Pursuant to a written plea agreement between defendant and the United

States, defendant “knowingly waive[d] any right to appeal a sentence imposed




*
      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 This order and judgment is not binding precedent, except under the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.
which is within the guideline range determined appropriate by the court. . . . In

other w ords, the defendant waive[d] 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.” Plea Agreement

at 12, ¶ 11.

       At the sentencing hearing on June 21, 2004, the district court found that

defendant’s offense and relevant conduct amounted to 397.78 kilograms of

cocaine, that he possessed a firearm in connection with the offense, that he was a

manager or supervisor of five or more participants, and that he had obstructed

justice by committing perjury at his trial, which had ended in his guilty plea.

Based on these findings, the court determined that defendant’s adjusted offense

level was 43 and his criminal history level was II. Under the sentencing

guidelines, this produced a sentence of life on each count. Accordingly, the

district court sentenced defendant to concurrent life sentences.

       Defendant filed a notice of appeal challenging his sentences on June 29,

2004, which was docketed as appeal No. 04-3237. The United States, in turn,

filed a motion to enforce the waiver of appeal rights contained in the plea

agreement. W hile that appeal was pending the Supreme Court issued its decision

in United States v. Booker, 543 U.S. 220 (2005), which significantly altered the

sentencing landscape. In light of the Booker decision, the United States

reconsidered its position on defendant’s appeal. It filed a motion confessing that

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the district court had committed both constitutional and non-constitutional Booker

error in sentencing defendant, that the errors were plain, that they affected

substantial rights, and that they ought to be noticed. Therefore, the government

withdrew its motion to enforce the appeal waiver and asked that the case be

remanded for resentencing. This court granted the motion and remanded the case

to the district court with instructions to vacate the sentence previously imposed

and resentence defendant in accordance with Booker.

      The district court resentenced defendant on M ay 30, 2006. At the

resentencing hearing, the court determined that while the guidelines advised a life

sentence on each count, the court was not going to impose a life sentence.

Instead, taking into account the other sentencing factors contained in 18 U.S.C.

§ 3553, the court determined that a more reasonable sentence on each count was

thirty years. Thus, the court imposed concurrent thirty-year sentences.

      Defendant again filed a timely appeal of his sentence. His counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding there

were no non-frivolous arguments for appeal, but advancing two arguments his

client would have him make. Counsel then moved to withdraw. Defendant was

given an opportunity to file a pro se response to his counsel’s Anders brief, which

he did. Rather than file a merits brief, the United States moved to enforce the

waiver of appeal rights contained in the plea agreement pursuant to United States

v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

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      Defense counsel has responded to the government’s motion stating that it is

appellant’s position that the court did not determine the appropriate guidelines

range and thus did not impose a sentence within the appropriate guidelines range,

so this court should consider the merits of his appeal rather than deem it waived

under the plea agreement. Defendant also was given an opportunity to respond to

the government’s motion, which he did. In his pro se response, he argues that the

government forfeited its right to enforce the appeal waiver when it filed its

motion in appeal No. 04-3237 confessing error, withdrawing its motion to enforce

the appeal waiver, and seeking a remand. He also argues that the government’s

confession of plain error in the earlier appeal demonstrates that the plea

agreement itself was not sound and should not be enforced. Finally, he argues

that once this court remanded the case for resentencing it somehow vitiated the

plea agreement and the waiver of appeal rights contained in that agreement.

      Under Hahn, 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.” 359 F.3d at 1325. The

miscarriage-of-justice prong requires the defendant to show (a) his sentence relied

on an impermissible factor such as race; (b) ineffective assistance of counsel in

connection with the negotiation of the appeal waiver rendered the waiver invalid;

(c) his sentence exceeded the statutory maximum; or (d) his appeal waiver is

                                         -4-
otherw ise unlawful. Id. at 1327. The government’s motion addresses these

considerations, explaining why none of them undermines defendant’s appeal

waiver.

      W e have carefully reviewed the plea agreement, the transcripts of the plea

hearing and the resentencing hearing, counsel’s Anders brief, defendant’s pro se

brief, and the materials filed by the parties in connection with the current motion

to enforce the plea agreement. “U nder Hahn, we conclude that defendant has

waived his right to appeal and his contrary arguments are without merit.”

      Accordingly, we GRANT the government’s M otion for Enforcement of Plea

Agreement and DISM ISS the appeal. Defense counsel’s motion to withdraw is

GRANTED. Defendant’s Response and Objection to “Former” Counsel’s

Response to Appellee’s M otion for Enforcement of Plea Agreement and M otion to

Dismiss Counsel is DENIED as moot. The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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