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

                            FOR THE TENTH CIRCUIT                      September 13, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                       No. 16-6151
                                                 (D.C. No. 5:15-CR-00129-D-1)
GREGORY JOHN MAUREK,                                     (W.D. Okla.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, EBEL, and MATHESON, Circuit Judges.
                  _________________________________

      Gregory John Maurek was charged with one count of receipt and distribution

of child pornography (Count 1), in violation of 18 U.S.C. § 2252(a)(2)(B), and one

count of possession of child pornography involving a prepubescent minor (Count 2),

in violation of 18 U.S.C. § 2252(a)(5)(B). Mr. Maurek entered into a plea agreement

with the government and agreed to plead guilty to Count 2. In exchange for waiving

his right to appeal his guilty plea and sentence, the government dismissed Count 1.

      Despite the waiver in his plea agreement, Mr. Maurek has filed an appeal in


      *
         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This order and judgment is not binding precedent, except under the doctrines of law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.
which he seeks to challenge his sentence. The government has filed a motion to

enforce the appellate waiver in Mr. Maurek’s plea agreement pursuant to our decision

in United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc).

      In Mr. Maurek’s plea agreement, he waived his right to appeal “his sentence as

imposed by the Court . . . and the manner in which the sentence is determined[,]”

provided the sentence is not “above the advisory guideline range determined by the

Court to apply” in his case. Mot. to Enf., Att. 1 at 8. The district court sentenced

Mr. Maurek to 120 months’ imprisonment, which was within the advisory guideline

range of 108 to 135 months that the court determined applied to his case.

      When reviewing a motion to enforce a waiver in a plea agreement 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.”

Hahn, 359 F.3d at 1325. Mr. Maurek concedes that his appeal falls within the scope

of his appellate waiver and that he knowingly and voluntarily waived his appellate

rights. Because of these concessions, we need not address these issues. See United

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

      Mr. Maurek argues, however, that enforcing the waiver would result in a

miscarriage of justice. In Hahn, we held that “enforcement of an appellate waiver

does not result in a miscarriage of justice unless enforcement would result in one of

the[se] four situations”: “[1] where the district court relied on an impermissible

factor such as race, [2] where ineffective assistance of counsel in connection with the

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negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds

the statutory maximum, or [4] where the waiver is otherwise unlawful.” 359 F.3d at

1327 (internal quotation marks omitted). We explained that “to satisfy the fourth

[situation]—where the waiver is otherwise unlawful—the error must seriously affect

the fairness, integrity or public reputation of judicial proceedings.” Id. (brackets and

internal quotation marks omitted).

      Mr. Maurek asserts that enforcing his waiver would be “otherwise unlawful”

because his 120-month sentence is excessive and he should have been granted a

downward variance. But the “inquiry 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.” United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir.

2007); see also United States v. Smith, 500 F.3d 1206, 1212-13 (10th Cir. 2007)

(recognizing that the “otherwise unlawful” “exception looks to whether ‘the waiver is

otherwise unlawful,’ not to whether another aspect of the proceeding may have

involved legal error” (citation omitted) (quoting Hahn, 359 F.3d at 1327)).

      Mr. Maurek spends pages arguing about the unfairness of his sentence. While

these arguments might be appropriate to challenge his sentence on direct appeal, our

inquiry at this stage in the proceedings is on the lawfulness of the waiver not the

lawfulness of his sentence. Because Mr. Maurek never explains why his waiver is

otherwise unlawful, he has failed to demonstrate that enforcing the waiver will result

in a miscarriage of justice.



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Accordingly, we grant the motion to enforce and dismiss this appeal.


                                   Entered for the Court
                                   Per Curiam




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